Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-392 | December 12, 2016 Page 1 of 31

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Vickie Yaser

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Moses Giger,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 12, 2016

Court of Appeals Case No.

71A03-1602-PC-392

Appeal from the St. Joseph 

Superior Court

The Honorable Jerome Frese, 

Judge

Trial Court Cause No.

71D03-0501-PC-7

Barnes, Judge.
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Case Summary

[1] Moses Giger appeals the post-conviction court’s denial of his petition for postconviction relief, which challenged his conviction and sentence for murder. We 

affirm.

Issues

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

I. whether Giger was denied the effective 

assistance of trial counsel; and

II. whether Giger was denied the effective 

assistance of appellate counsel.

Facts

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

On February 2, 2002, Giger went to the home of his neighbor, 

Angela Husband. Husband was a prostitute and Giger paid her 

regularly with either money or drugs for sexual services. When 

Giger arrived at Husband’s, he had only a small amount of crack 

cocaine and told Husband he would return later if he could get 

more cocaine with which to pay her.

Giger called James Thorpe (also known as “Cash”), a drug 

dealer with whom Giger had regular contact and from whom 

Giger had purchased drugs within the preceding week. Thorpe 

asked Giger to drive him somewhere and Giger picked him up. 

Giger drove Thorpe to a residence. Giger remained in the car 

while Thorpe exited, presumably to approach the house. Thorpe 

took Giger’s keys with him to make sure that Giger would not 

leave him stranded at the house. Giger, in turn, held some of 
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Thorpe’s drugs to make sure Thorpe would return. Giger claims 

he saw Thorpe running down the street and Giger chased him 

because Thorpe had Giger’s car keys. Giger claims that he fell 

while chasing Thorpe. After falling, Giger saw a knife on the 

ground and picked it up. He claims that he found Thorpe’s body 

a few feet from the knife and was unable to rouse him.

Giger took the knife with him and drove home. He left the knife 

by the front door. After noting that he had blood on his hands 

and pants, he washed his hands and changed his pants. He later 

returned to Husband’s house with a handful of cocaine packets. 

Giger, Husband, and Husband’s mother consumed the cocaine. 

After the cocaine was consumed, Giger left and returned with 

more drugs.

Thorpe’s body was found in a pool of his blood on the morning 

of February 3 at the corner of College and Sibley Streets in South 

Bend. Thorpe had been stabbed twenty-one times with a knife, 

puncturing both lungs, his aorta, and damaging his heart. The 

wounds included several stabs to his back, stabs to his arms 

suggesting defensive wounds and a cluster of stab wounds to the 

chest at least two of which the pathologist classified as 

perimortem or postmortem wounds.

Husband contacted the South Bend police stating that she 

believed Giger may have killed Thorpe. The police recovered 

several items from Giger’s home including the knife and two 

pairs of Giger’s jeans. Thorpe’s blood was found on Giger’s car, 

jeans, left shoe, and on the knife. Police officers also recovered 

$359.95 in blood-covered currency in Giger’s possession. The 

State performed DNA testing on items taken from Giger as well 

as items recovered from the crime scene. The only recovered 

DNA inconsistent with Giger or Thorpe was from the headband 

of Thorpe’s baseball cap and the outside of Thorpe’s pockets.
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Giger v. State, No. 71A05-0306-CR-286, slip op. at 2-4 (Ind. Ct. App. Apr. 12, 

2004). 

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

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

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

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

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

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

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

regarding the restitution order. Id. at 16.

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

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

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

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

issued findings of fact and conclusions of law denying Giger’s petition for postconviction relief. Giger now appeals.

Analysis

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

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

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

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

findings must be supported by facts and the conclusions must be supported by 
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the law.” Id. Our review on appeal is limited to these findings and 

conclusions. Id. Because the petitioner bears the burden of proof in the postconviction court, an unsuccessful petitioner appeals from a negative 

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

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

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

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

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

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

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

conclusion.” Id. 

I. Ineffective Assistance of Trial Counsel

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

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

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

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

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

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

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

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

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

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

result of the proceeding would have been different. Id. “A reasonable 
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probability is a probability sufficient to undermine confidence in the 

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

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

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

by a prejudice inquiry alone. Id. 

A. Conflict of Interest 

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

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

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

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

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

were resolved.

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

Petitioner claims that he was deprived of effective assistance of 

counsel because Mr. Weisman also represented Demetric 

Johnson, a witness in the case.

The evidence showed, however, that Mr. Weisman’s 

representation of Ms. Johnson had ended long before Petitioner’s 

trial was held. There was no indication that Mr. Weisman’s 

prior representation of Ms. Johnson had touched on matters 

relevant to Petitioner’s case at all.

More importantly, Mr. Weisman explained that he didn’t believe 

there was any conflict because he did not view Ms. Johnson as 

an adverse witness. Although she was called by the State, he 
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testified that he would have called her as a defense witness if the 

State had not called her. Mr. Weisman wanted to use Ms. 

Johnson, not attack her.

Finally, this Court believes Mr. Weisman—and does not believe 

Petitioner—on the issue of disclosure. Mr. Weisman testified 

that he discussed the matter with Petitioner prior to trial. 

Although this is disputed by Petitioner, this Court finds that 

Petitioner has not carried his burden of proof on this issue.

Appellant’s App. Vol. III pp. 93-94.

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

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

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

101 S. Ct. 1097 (1981)), cert. denied. “To establish a violation of the Sixth 

Amendment due to a conflict, a defendant who failed to raise the objection at 

trial must demonstrate that trial counsel had an actual conflict of interest and 

that the conflict adversely affected counsel’s performance.” Id. (citing Cuyler v. 

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

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

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

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

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

an actual conflict:

“There is the possibility of a conflict, then, if the interests of the 

defendants may diverge at some point so as to place the attorney 
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under inconsistent duties. There is an actual, relevant conflict of 

interests if, during the course of the representation, the 

defendants’ interests do diverge with respect to a material factual 

or legal issue or to a course of action.” Cuyler, 446 U.S. at 356 n. 

3, 100 S. Ct. 1708 (Marshall, J., concurring in part).

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

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

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

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

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

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

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

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

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

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

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

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

consider only the probative evidence and reasonable inferences flowing 

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

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

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

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

say there was anything more than the possibility of a conflict here.
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[13] Moreover, even if we were to assume that Giger’s and Johnson’s interests 

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

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

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

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

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

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

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

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

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

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

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

Johnson to implicate Greene was ineffective. 

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

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

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

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

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

are simply insufficient to demonstrate ineffective assistance of counsel. The 

post-conviction court’s finding is not clearly erroneous. 
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 B. Failure to Investigate and Cross-Examine Effectively

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

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

and Rebecca Tobey. 

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

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

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

failed to cross-examine Husband regarding inconsistencies between her initial 

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

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

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

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

cross-examined Greene regarding some inconsistencies between his statements 

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

contends that his trial counsel missed opportunities to highlight “seemingly 

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

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

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

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

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

benefits that Stewart received for his testimony. 
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[19] Vanison was a friend of Thorpe and testified regarding Thorpe’s activities on 

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

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

failed to investigate Vanison’s criminal history.

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

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

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

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

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

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

[22] On the issue of trial counsel’s cross-examination and investigations, the postconviction court found:

Petitioner complains that his trial attorney, Mr. Neil Weisman, 

did not adequately cross examine and impeach various trial 

witnesses. In fact, a review of the trial record reveals that Mr. 

Weisman DID cross examine the various witnesses, and DID 

argue to the jury that the trial testimony of those witnesses was 

suspect. Although Petitioner acknowledges that fact, he believes 

that Mr. Weisman should have done MORE to impeach and 

attack witnesses, and that his failure to do so amounted to 

ineffective assistance.

This Court finds otherwise. Mr. Weisman was already an 

experienced trial lawyer at the time of the trial. He explained 

during his testimony at the PCR hearings that he had to 

strategically pick and choose which battles to fight with witnesses 

in front of the jury. He explained that the demeanor of witnesses 
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could impact whether he allowed various portions of testimony 

to go unchallenged during cross examination. He explained that 

the defense theory of the case also required him to sift through 

the witnesses’ trial testimony, asking the jury to accept some of 

the testimony while rejecting other portions. This strategy would 

have been incompatible with the sort of “no-holds-barred” cross 

examination that Petitioner is now claiming to be essential. The 

Court finds Mr. Weisman’s strategy and tactics—and 

explanation for them—to be reasonable. 

Further, it is essential to point out that Petitioner has not 

demonstrated what the outcome or results of additional cross 

examination would have been. Petitioner repeatedly insists that 

trial counsel should have “explored” issues more fully (either pretrial or during cross examination), or that trial counsel should 

have more fully “impeached” witnesses. But Petitioner has not 

proved how the witnesses would have answered such cross examination 

questions, or how the witnesses would have responded to increased 

attacks on their credibility, or whether the State would have been able to 

effectively counter such tactics. This Court declines the apparent 

invitation to simply assume that the result of “further 

exploration” of the issues suggested by Petitioner with trial 

witnesses would have caused the witnesses to crumble in front of 

the jury.

The Court finds Petitioner has not met the first prong of the 

Strickland test with respect to Mr. Weisman’s cross examination 

at trial. There was no deficient performance.

The Court further finds that Petitioner has not met the second 

prong of the Strickland test on this issue. Even if the additional 

cross examination matter suggested by Petitioner during the PCR 

hearing were brought out in front of the jury, there is absolutely 

no reason to believe that the outcome of the trial would have 

been different. The core facts outlined above would have 

remained the same. There was no possible prejudice.
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* * * * *

One of the State’s witnesses, Angela Husband, made a statement 

about a prior event that occurred in a garage. To be clear, the 

murder did not happen in a garage or at the time of that alleged 

prior event. Still, Petitioner claims that his trial counsel should 

have located and presented witnesses (family members) who 

could have contradicted that statement about the garage, and that 

the failure to do so constituted ineffective assistance.

Petitioner has not demonstrated how his trial attorney should 

have been responsible for doing that. He has not explained why 

he did not give his attorney the information about his family 

members or their possible value as witnesses. He has not 

demonstrated poor performance and thus fails on the first 

Strickland prong.

Petitioner also fails on the second Strickland prong. The 

condition of the garage—and Angela Husband’s credibility on 

that point—were extremely minor points. The relevance of these 

topics was miniscule compared to the core facts of the case 

outlined above. The outcome of the trial would not have been 

different even if trial counsel had called family members to 

describe the condition of the garage.

Appellant’s App. Vol. III pp. 88-91. 

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

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

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

assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” Id. “We recognize that even the finest, most 
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experienced criminal defense attorneys may not agree on the ideal strategy or 

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

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

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

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

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

offer strong and convincing evidence to overcome the presumption that counsel 

prepared and executed an effective defense.” Id. 

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

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

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

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

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

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

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

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

deficient.

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

demonstrate prejudice from the alleged deficiencies. In his interview with 

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

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

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

Thorpe. He claimed that he kept Thorpe’s drugs in the car and that Thorpe 
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took the car keys into the house. According to Giger, he saw Thorpe running 

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

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

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

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

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

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

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

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

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

counsel’s alleged deficiencies.

C. Evidence of Peaceful Character

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

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

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

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

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

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

usage.

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

Petitioner complains that his lawyer should have called Pastor 

James Williams (or anyone else) to testify to Petitioner’s 
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“character for peacefulness” during the trial, and that the failure 

to call such witnesses constituted ineffective assistance.

The substance of what James Williams would have been able to 

testify to was explored at the January 2015 evidentiary hearing. 

His basis for knowledge was limited, constituting mostly of 

contact with Petitioner from decades earlier (although he had 

some continued, albeit lesser, contact with Petitioner as adults.) 

Mr. Williams lacked knowledge of much of Petitioner’s adult 

lifestyle and activities, and Mr. Williams lacked knowledge of the 

facts of the case.

Mr. Weisman testified that he successfully conveyed to the jury 

through other witnesses the basic fact that Petitioner was “a good 

guy” even though he didn’t specifically call a character witness 

during trial. He further testified that in his experience, juries did 

not respond well to defense character witnesses. Indeed, this 

Court agrees that attempting to introduce character evidence on 

behalf of a Defendant who smoked crack cocaine (acquired from 

a dead man) with a prostitute after being stained with the dead 

man’s blood would probably have backfired. There was no 

deficient performance, and no possibility of prejudice.

Appellant’s App. Vol. III p. 91.

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

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

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

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

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

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

N.E.2d at 585. Giger has failed to demonstrate that trial counsel’s performance 
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was deficient. Further, given the overwhelming evidence against Giger, even if 

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

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

D. Failure to Redact Interrogation

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

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

the following statements by police during the interrogation:

 You expect I’m gonna sell this story to somebody that’s 

gonna say now wait a minute, don’t we have some 

problems here?

 How are we supposed to sell this story to somebody and 

believe your story when the most important things about 

this, you left out!

 Well I know you were at Angie’s house, you came in there 

huffin and puffin and all sweating and out of god**** 

breath!

 And you had blood all over your pants.

 So all the blood they see on your hands and all the blood 

they see on your pants, that come from you slipped on 

your . . . .

 What would they lie about, why would they lie about you 

coming in there being all sweaty, out of breath, thumping 

thumping, acting like something was strange, acting like 

something’s going on, got blood all over your pants, got 
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blood all over your hands and you got a pocket full of 

money and you’re flashing all this money at ‘em. You 

gonna tell that they’re lying about that.

 You know what I see, you think I want to sell this story to 

somebody else. I’ll tell you what story I’m gonna sell to 

you, you put yourself in this, and I ain’t got . . . I’m 

convinced that you ain’t telling me the truth. Ok. You 

didn’t take nothing but the keys out of his pocket but the 

money laying up on the god**** dresser’s got blood all 

over it . . . .

 So the money you would have gotten would have come 

from Chicago. Now you need to explain the fact that the 

victim’s blood is on the . . . let me finish . . . is on the 

money that you brought back from Chicago after you 

changed clothes and washed your hands. Shouldn’t be 

there!

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

 This is a hard one man, serious, I want to believe you, I 

really do. But it’s just not adding up.

 I’m looking at this knife and it’s got blood on it and I’m 

thinking to myself it can’t be this easy.

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

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

[30] The post-conviction court rejected Giger’s argument and found:
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Petitioner’s interview with police was admitted at trial. 

Petitioner claims that his trial lawyer should have attempted to 

have the interview recording redacted, or should have requested 

a limiting admonishment, because the recording contained 

“inadmissible and prejudicial comments made by police.”

Mr. Weisman testified during the PCR proceedings that he didn’t 

believe that anything on the recording was especially egregious or 

out of the ordinary, and thus that it didn’t require redaction or an 

admonishment. He further testified that he believed that 

allowing the jury to see and consider the interview in its 

entirety—and without comment by the Court—was in 

Petitioner’s best interest. He believed that Petitioner held up very 

well in spite of strong pressure from police, and he wanted the 

jury to see that in an unvarnished way.

This Court, especially under the deferential review required when 

considering trial attorney’s performance, cannot find that this 

was deficient performance.

Appellant’s App. Vol. III p. 92.

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

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

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

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

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

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

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

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

in Giger’s car. Trial Tr. p. 1006. The admission of the police interrogation was 
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a matter of strategy, and Giger has failed to demonstrate that his performance 

was deficient.

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

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

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

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

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

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

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

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

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

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

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

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

E. Failure to Object to Instructions

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

certain jury instructions regarding direct and circumstantial evidence. 

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

following instructions:

Circumstantial evidence means evidence that proves a fact from 

which an inference of the existence of another fact may be 

drawn. An inference is a deduction of fact that may logically and 

reasonably be drawn from another fact or group of facts. You are 

entitled to draw reasonable inferences from the evidence. It is not 
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necessary that facts be proved by direct evidence. Both direct 

evidence and circumstantial evidence are acceptable as a means 

of proof. The State is not required to prove the essential elements of 

murder by eyewitness observation. Circumstantial evidence may 

establish the guilt of the defendant beyond a reasonable doubt. 

However, in a case such as this where the evidence is entirely 

circumstantial, in order to convict, such circumstantial evidence 

must be so conclusive a character and point so surely and 

unerringly to the guilt of the accused as to exclude every 

reasonable hypothesis of innocence.

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

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

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

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

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

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

portions of the following instruction:

You are the only judges of the weight of both the physical 

evidence and the testimony—believability, or “credibility”—of 

each of the witnesses. In considering the testimony of a 

witness—including the testimony of the defendant, who is a 

competent witness in his own behalf—you may take into account 

the witness’s ability and opportunity to observe those things he or 

she testified to, the witness’s memory, manner and conduct while 

testifying, any interest the witness may have in this case, any bias 

the witness may have for or against any party to this suit, any 

relationship with other witnesses or interested parties, and the 

reasonableness of the witness’s testimony when viewed with all 

of the other evidence in the case. The credibility of the defendant’s 

testimony should be evaluated by you according to the same criteria that 
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you use for any other witness. You should try to fit the evidence to 

the presumption that the defendant is innocent. Each witness in 

a trial takes an oath to testify truthfully. Therefore, you should 

not disregard the testimony of any witness without a reason, and 

then only after careful consideration. The testimony of a witness 

does not have to be corroborated by other evidence for you to believe that 

witness. However, if you find so much conflict between the 

testimony of two or more witnesses that you cannot believe each 

of them, then you must decide which witnesses you will believe 

and which you will disbelieve. Or, if you decide that any witness’s 

testimony is so unreasonable as to be unworthy of belief, you may 

disbelieve that witness. Furthermore, you should evaluate the testimony 

of each witness in light of all relevant physical evidence, and the 

reasonable inferences drawn from such physical evidence. If you have 

drawn reasonable conclusions about the physical evidence that prove 

inconsistent with the testimony of any witness, then you should 

reconsider both the physical evidence and that witness’s testimony in 

order to resolve such apparent inconsistency. In other words, you must 

decide in such a case whether your conclusions drawn from the physical 

evidence are invalid, or whether you disbelieve the witness, or whether 

you are unable to draw any conclusion.

In weighing the evidence to determine what or whom you will 

believe, you should use your own knowledge, experience and 

common sense gained from day to day living. You may find that 

your determination of the truth is not controlled by the number 

of witnesses who testify to a particular fact, or on one side or the 

other, or the quantity of evidence on a particular point. You 

should give the greatest weight to that evidence which convinces 

you most strongly of its truthfulness.

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

testimonial evidence against physical evidence” and “did not allow for the jury 
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to accept both the physical evidence pointing to Giger’s possible guilt but to 

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

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

Petitioner complains that his trial counsel should have objected 

to the final jury instructions regarding circumstantial evidence 

and the jury’s responsibility to evaluate evidence. He claims that 

these instructions were erroneous, and that therefore a good trial 

lawyer should have kept the jury from being exposed to these 

instructions.

Petitioner has waived this argument. He did not raise complaints 

about the instructions on direct appeal. Collateral attacks 

regarding the propriety of the instructions given should have been 

raised on appeal. If an issue was known and available, but not 

raised on direct appeal, it is waived. Timberlake v. State, 753 

N.E.2d 591, 597 [(Ind. 2001)](citing Rouster v. State, 705 N.E.2d 

999, 1003 (Ind. 1999)).

Secondly, although Petitioner complains that these instructions 

were improper, he has not claimed that they incorrectly state the 

law. He has instead complained that they are inappropriate or 

confusing or repetitive. He has offered no on-point legal 

authority supporting that assertion. This Court is not aware of 

any binding precedent holding that the instructions at issue were 

faulty as a matter of law. This Court continues to find that the 

instructions were appropriate as a matter of law.

Without demonstrating that the instructions were faulty as a 

matter of law, it is apparent that Petitioner’s claim of ineffective 

assistance on this issue must fail. “Where a subject is properly 

covered by a given instruction, it is not error to fail to give a 

tendered instruction on the same subject.” McCurry v. State, 558 
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N.E.2d [817, 819] (Ind. 1990). In fact, it is apparent that this 

claim should be more appropriately addressed as a direct 

challenge to the instructions rather than a complaint about 

instructions that is couched in terms of “ineffective assistance.”

Appellant’s App. Vol. III pp. 89-90.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Giger was prejudiced by any alleged deficiency, and Giger’s claim fails.
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F. Failure to Object to Prosecutorial Misconduct

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

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

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

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

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

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

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

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

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

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

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

denied. 

G. Failure to Present Mitigating Evidence

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

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

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

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

and closeness to his family. 

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

Petitioner presented evidence during the PCR hearings from his 

family members and a family friend. They testified that if they 

had been called to testify during sentencing, they would have 
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talked about Petitioner’s good character, described him as a good 

man or family man, and that they would have asked the Court to 

have mercy. Petitioner claims that the failure to actually present 

this evidence at his sentencing hearing meant that his trial 

attorney was ineffective.

First, since the Court of Appeals has already reviewed the 

aggravating and mitigating factors in this case and has found the 

sentence to be appropriate, it appears that issues related to 

sentencing might well be res judicata and thus off-limits for a 

PCR.

Second, at sentencing this Court already considered Petitioner’s 

connections to family, his employment history, and other 

mitigating factors at sentencing. Having now heard and 

evaluated the testimony available from Petitioner’s family 

members, this Court concludes that such testimony would not 

have made a difference in the sentence imposed.

Third, Petitioner has not demonstrated why this was his lawyer’s 

responsibility. During his PCR hearing, he admitted that he had 

not asked his lawyer to call these potential witnesses. This Court 

informed him of his right to call such witnesses when the 

sentencing hearing was set.

Appellant’s App. Vol. III pp. 92-93.

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

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

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

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

address it.
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[42] At the sentencing hearing, Giger’s trial counsel noted Giger’s “total lack of 

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

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

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

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

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

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

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

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

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

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

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

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

[43] Even if Giger’s trial counsel had presented additional evidence regarding fiftyone-year-old Giger’s childhood, kindness during his younger years, faithfulness, 

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

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

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

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

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

 

1 This court did find the probationary period and the restitution ordered by the trial court to be problematic 

and reduced the probationary period and remanded regarding the restitution. See Giger, No. 71A05-0306-CR286, slip op. at 14-15. 
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the viciousness of the murder, there is no reasonable probability of a different 

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

and Williams. 

H. Cumulative Effect

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

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

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

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

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

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

Moreover, given the overwhelming evidence against Giger, any alleged 

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

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

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

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

that counsel performed adequately within the meaning of the Sixth 

Amendment.”).

II. Ineffective Assistance of Appellate Counsel

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

counsel. Ineffective assistance of appellate counsel claims generally fall into 

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

(3) failure to present issues well. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.
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2006). Giger’s claim falls under the third category. Our supreme court has held 

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

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

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

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

First, these claims essentially require the reviewing tribunal to review specific issues it has already adjudicated to determine 

whether the new record citations, case references, or arguments 

would have had any marginal effect on their previous decision.

Thus, this kind of ineffectiveness claim, as compared to the 

others mentioned, most implicates concerns of finality, judicial 

economy, and repose while least affecting assurance of a valid 

conviction.

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

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

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

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

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

have ruled differently.” Id. 

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

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

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

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

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

walk to the side of the house and that he pulled the car around to the front 
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where he smoked crack cocaine in his car. He then saw Thorpe running up the 

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

This court’s direct appeal opinion stated:

Giger claims he saw Thorpe running down the street and Giger 

chased him because Thorpe had Giger’s car keys. Giger claims 

that he fell while chasing Thorpe. After falling, Giger saw a knife 

on the ground and picked it up. He claims that he found 

Thorpe’s body a few feet from the knife and was unable to rouse 

him.

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

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

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

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

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

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

Petitioner has argued that appellate counsel was ineffective. 

Petitioner has not offered any facts of testimony or evidence 

regarding these claims, although there have been evidentiary 

hearings held on three separate days over the time span of a year. 

In all aspects, the law is with the State and against the Petitioner. 

The Petitioner is entitled to no relief on any of his claims.

Appellant’s App. Vol. III p. 94.

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

appellee’s brief summarize the facts and note that Giger saw Thorpe running 
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down the street, which is supported by the evidence presented at the jury trial. 

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

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

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

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

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

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

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

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

would have been different.

Conclusion

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

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

affirm.

Affirmed.

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