Isaiah A. Hagan, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Isaiah Hagan appeals the denial of his petition for forensic DNA testing and his petition for post-conviction relief. Although Hagan raises several issues, we conclude that the post-conviction court (“PC Court”) did not err by denying Hagan's petitions. Accordingly, we affirm.

Issues

[2] Hagan raises several issues, which we restate as:

I. Whether the PC Court erred by denying Hagan's motion for DNA testing.

II. Whether the PC Court properly denied Hagan's cross-motion for summary judgment.

III. Whether the PC Court properly denied Hagan's claims of ineffective assistance of trial counsel.

IV. Whether the PC Court properly denied Hagan's claims of new evidence.

Facts

[3] The facts, as stated in Hagan's direct appeal, follow:

On April 24, 2017, the body of Halee Rathgeber (“Rathgeber”) was found in a parking lot in rural Warrick County, next to a bloody blue towel. She died from a gunshot wound to the head. On the day Rathgeber was found, Hagan—who lived with his mother Donna Hagan (“Donna”) and father Wandel Hagan (“Wandel”)—told Donna he had been with Rathgeber the previous day. Donna was a long-time employee of the Warrick County Sheriff's Department, employed at the Warrick County Jail. She suggested that Hagan speak with law enforcement to help with the investigation, which Hagan did. Law enforcement later searched the residence that Hagan, Donna, and Wandel shared. The search produced a blue towel—the same brand as the towel next to Rathgeber. Law enforcement also discovered that a handgun was missing.

The investigation led to an interview with Hagan on April 26, 2017, at the start of which Detective Paul Kruse (“Detective Kruse”) read line-by-line from a form containing an advisement of rights. This form also contained a Waiver of Rights section, which Hagan signed. On April 29, 2017, Detective Kruse again met with Hagan, who agreed to another interview at the Sheriff's Department. On the way to the interview, Detective Kruse reminded Hagan “of the waiver that he had signed” and “asked if he recalled those rights.” Tr. Vol. II at 153. Hagan said that he understood. Before the interview began, Detective Kruse obtained a blank copy of the advisement form. Hagan again signed the waiver.

During the interview, Hagan said he had driven Rathgeber to the parking lot where her body was found—contradicting a prior statement that he dropped her off elsewhere. Hagan also said he had thrown away Rathgeber's phone after finding it in his car. At some point, Hagan said he wanted to talk with Donna. Hagan eventually said he was done talking. Law enforcement then arranged a meeting with Donna, who was on duty. Donna—in full uniform—met with Hagan in a room at the Sheriff's Department. This meeting was not recorded, and Hagan was not given additional advisements prior to meeting with Donna.

The State later charged Hagan with two counts of Murder—alleging, in one count, that Hagan had murdered Rathgeber while committing or attempting to commit Robbery. The State also charged Hagan with Level 2 felony Robbery Resulting in Serious Bodily Injury and Level 6 felony Obstruction of Justice. In addition to these counts, the State filed an enhancement seeking a sentence of life imprisonment without parole. A jury trial began in early May 2018, but resulted in a mistrial. A second jury trial commenced later that month.

At trial, Donna testified about her meeting with Hagan. At the meeting, Hagan told Donna that he accidentally shot Rathgeber. Hagan also told Donna that he disposed of the gun in a dumpster behind a liquor store. Despite that assertion of accident, there was evidence at trial that Hagan had tried to cover his tracks—sending Rathgeber a text message well after discarding her phone. There was also evidence that Rathgeber owed Hagan money, and that Hagan owed Wandel money.[1] The morning Rathgeber was found dead, Hagan put $210 on the counter for Wandel. Later that day, Hagan tried to sell concert tickets, claiming he was selling them for Rathgeber. Eventually, Rathgeber's wallet was found along the side of a road. The wallet had no paper bills inside.

The jury found Hagan guilty of the four substantive counts. Hagan and the State then reached an agreement whereby Hagan would avoid life without parole, instead serving a sentence of sixty years in the Indiana Department of Correction. The trial court sentenced Hagan in accordance with the agreement.

Hagan v. State, No. 18A-CR-1953, slip op. pp. 3-5 (Ind. Ct. App. Jul. 9, 2019) (mem.), trans. denied. Our Supreme Court denied transfer.

[4] One of Hagan's defense theories was that Rathgeber was murdered by Thaddious Rice. Rathgeber was a friend of Jordan Hughes Reyes Mora (“Jordan”), and Rathgeber was the godmother of Jordan's ten-month-old son, Jaxson Wheeler (“Jaxson”). Jordan was dating Rice, and on April 10, 2017, shortly before Rathgeber's murder, Rice killed Jaxson. Hagan theorized that Rice killed Rathgeber because she knew something about Jaxson's death.² Hagan called Jordan as a witness at his jury trial, and she invoked her Fifth Amendment privilege before the jury. Law enforcement also testified regarding the investigation of Rice and elimination of him as a suspect.

[5] On direct appeal, Hagan raised several issues. Of relevance to these post-conviction proceedings, Hagan argued that the trial court abused its discretion by admitting his statements to Donna because the statements were “obtained in violation of the Fifth Amendment to the United States Constitution.” Id. at 6. Hagan contended that Donna was “an agent of the State” and that the officers were attempting to “circumvent Miranda.” Id. at 8-9. This Court disagreed and held that “Hagan volunteered the incriminating statements during a personal, private meeting with his mother.” Id. at 10. This Court found no Fifth Amendment violation and held that the trial court did not abuse its discretion by admitting Hagan's statements to Donna.

[6] Hagan also argued that the trial court abused its discretion by excluding: “testimony about a rumor that someone else killed Rathgeber;” a video depicting the location of Hagan's and Rathgeber's cellphones that FBI Special Agent Kevin Horan initially used but later determined to be inaccurate; and a Snapchat video showing Rice “inside a car wielding a gun.” Id. at 11-12. This Court found no abuse of discretion in the exclusion of this evidence.³

[7] Hagan filed a petition for post-conviction relief in May 2020, which he amended in June 2022, and July 2022. In the petition, Hagan raised several free-standing claims of error, ineffective assistance of trial and appellate counsel, and a claim that evidence of material facts, which were not previously presented, required the vacation of Hagan's convictions.

[8] In October 2022, Hagan filed a petition for forensic DNA testing pursuant to Indiana Code Chapter 35-38-7. Hagan sought testing of the following: (1) additional testing of the blue towel found next to Rathgeber's body; (2) an empty Hi-Point firearms box for a Model C9 9mm Luger, which was found in Hagan's residence; (3) two cigarette butts found near Rathgeber's body; (4) fingernail clippings taken from Rathgeber's body; and (5) clothing recovered from Rathgeber's body, vehicle, and apartment.

[9] The PC Court held a hearing on Hagan's petition for forensic DNA testing, and on January 4, 2023, the PC Court denied Hagan's petition.⁴ The PC Court found that Hagan “failed to meet the prima faci[e] test for analysis of evidence which was known and available for testing by the Defense before and during the trial.” Appellant's App. Vol. II p. 27. The PC Court found that Hagan had “floated speculative possibilities of potential outcomes for his requested testing but has whole heartedly failed to present any concrete or productive evidence in support of requiring additional testing at this stage of the proceeding.” Id. “His theories of potentially discoverable evidence lack any nexus with particular suspects other than [Hagan] and only would produce results indicative of the general population or at best an individual who may be sufficiently identified in a governmental database.” Id.

[10] On November 30, 2023, the State filed a motion for summary disposition. The State argued that several of Hagan's claims had already been addressed in his direct appeal. Hagan then filed a brief in response to the State's motion for summary disposition and a cross-motion for summary judgment. Hagan argued that his designated evidence entitled him to summary judgment on his ineffective assistance of counsel claims, among others. After a hearing, on August 21, 2024, the PC Court denied Hagan's cross-motion for summary judgment. Further, the PC Court partially granted the State's motion for summary disposition, leaving Hagan's claims of ineffective assistance of counsel and the discovery of material facts.

[11] An evidentiary hearing was held in December 2024. At the hearing, the PC Court found the testimony and a report from Luke Douglas, a psychology professor, to be inadmissible.⁵ The PC Court also found the testimony of Elizabeth Pierson, a licensed clinical social worker who assisted Douglas, to be inadmissible. Hagan also sought to admit a report by Dr. Peter Gobar, which the PC Court later found to be inadmissible. Hagan testified, but he did not call his trial/appellate counsel to testify at the post-conviction hearing. On March 7, 2025, the PC Court issued an order with findings of fact and conclusions of law, which denied Hagan's petition for post-conviction relief. Hagan filed a motion to correct error, which the PC Court also denied. Hagan now appeals.

Discussion and Decision

[12] Hagan challenges the PC Court's denial of his petition for post-conviction relief. Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019); Ind. Post-Conviction Rule 1(1)(b). “The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal.” Gibson, 133 N.E.3d at 681. “Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C.R. 1(5).

[13] When, as here, the petitioner “appeals from a negative judgment denying post-conviction relief, he ‘must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.’ ” Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the post-conviction court's order denying relief, we will “not defer to the post-conviction court's legal conclusions,” and the “findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner “fails to meet this ‘rigorous standard of review,’ we will affirm the post-conviction court's denial of relief.” Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).

[14] We further note that Indiana Appellate Rule 46(A)(8)(a) requires that the argument section of a brief “contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on ․” We will not consider an assertion on appeal when there is no cogent argument supported by authority and there are no references to the record as required by the rules. Picket Fence Prop. Co. v. Davis, 109 N.E.3d 1021, 1029 (Ind. Ct. App. 2018) (citing Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016)), trans. denied. “ ‘We will not become an advocate for a party or address arguments that are inappropriate or too poorly developed or expressed to be understood.’ ” Id. (quoting Basic, 58 N.E.3d at 984). “We will not step in the shoes of the advocate and fashion arguments on his behalf, nor will we address arguments that are too poorly developed or improperly expressed to be understood.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (internal quotations omitted).

I. The PC Court did not err by denying Hagan's petition for forensic DNA testing.

[15] Hagan first challenges the PC Court's denial of his petition for forensic DNA testing. “By statute, a person convicted of certain crimes, including murder, may petition for forensic DNA testing of material that may contain biological evidence related to the prosecution.” Matheney v. State, 834 N.E.2d 658, 663 (Ind. 2005). Indiana Code Chapter 35-38-7 governs the availability of post-conviction DNA testing. Indiana Code Section 35-38-7-8 provides:

[T]he court shall determine whether the petitioner has presented prima facie proof of the following:

(1) That the evidence sought to be tested is material to identifying the petitioner as:

(A) the perpetrator of; or

(B) an accomplice to;

the offense that resulted in the petitioner's conviction.

(2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and analysis is in the possession or control of either:

(A) the state or a court; or

(B) another person, and, if this clause applies, that a sufficient chain of custody for the evidence exists to suggest that the evidence has not been substituted, tampered with, replaced, contaminated, or degraded in any material aspect.

(3) The evidence sought to be tested:

(A) was not previously tested; or

(B) was tested, but the requested DNA testing and analysis will:

(i) provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice; or

(ii) have a reasonable probability of contradicting prior test results.

(4) A reasonable probability exists that the petitioner would not have:

(A) been:

(i) prosecuted for; or

(ii) convicted of;

the offense; or

(B) received as severe a sentence for the offense;

if exculpatory results had been obtained through the requested DNA testing and analysis.

[16] Hagan sought testing of the following: (1) additional testing of the blue towel found next to Rathgeber's body; (2) an empty Hi-Point firearms box for a Model C9 9mm Luger, which was seized from Hagan's parents’ residence; (3) two cigarette butts found near Rathgeber's body; (4) fingernail clippings taken from Rathgeber's body; and (5) clothing recovered from Rathgeber's body, vehicle, and apartment. The PC Court found that Hagan's motion was “nothing more than a hopeful expectation of unexplained evidentiary value” and “lack[ed] any indicia of scientific probability and reasonable probability that the verdict would be different had any of the evidence been available at trial.” Appellant's App. Vol. II p. 27. We agree with the PC Court.

[17] On appeal, Hagan focuses his attention on testing of the blue towel, the empty firearms box, and the cigarette butts. Hagan makes no argument whatsoever regarding the fingernail clippings or the clothing. Accordingly, Hagan has waived any contentions regarding the fingernail clippings and clothing. See Ind. Appellate Rule 46(A)(8); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the failure to present a cogent argument waives the issue for appellate review), trans. denied.

[18] The blue towel found next to Rathgeber's body was a Comfort Bay towel with an RN ⁶ number of 67227. A matching towel with the same RN number was found in Hagan's residence. Rathgeber's DNA was found on the towel, but there were insufficient quantities of DNA for further analysis. Hagan claims, with no supporting evidence, that “[t]he forensic analysts/experts should be able to collect sufficient touch DNA to develop a full DNA profile given that trace evidence was retained on six (6) swabs.” Appellant's Br. p. 24. Hagan's arguments fail to explain how repeated testing of the towel would result in a different outcome. For example, Hagan presented no evidence of advances in DNA testing that could have a reasonable probability of impacting the outcome of the trial.

[19] Testing of one of the cigarette butts revealed the DNA profile of an unknown male, and testing of the other cigarette butt yielded an insufficient quantity of DNA for testing.⁷ Again, Hagan presented no evidence that advances in DNA testing could produce a sufficient quantity of DNA for testing. Moreover, even if further testing was performed, the cigarette butts were found in a public parking lot at a soccer field. Hagan does not explain how he would be exonerated by this testing given the overwhelming evidence against him.

[20] As for the empty firearms box, Hagan claims that he would be exonerated if his fingerprints or DNA were not found on the box. The empty firearms box was recovered from Hagan's residence, and the firearm was missing. Even if Hagan's prints or DNA were not found on the firearms box, again, he does not explain how he would be exonerated given the overwhelming evidence against him.

[21] At trial, the State presented evidence that Hagan and Rathgeber were friends; Hagan was having financial problems; surveillance video showed Hagan picking up Rathgeber at her apartment on the night of her murder; Hagan admitted to driving Rathgeber to the soccer fields; cell phone data showed that Hagan and Rathgeber traveled together to the soccer fields; Hagan claimed that he left Rathgeber alone at night at the soccer fields; a blue towel found next to Rathgeber's body matched blue towels found in Hagan's residence; a handgun was missing from Hagan's residence; Hagan admitted to later throwing Rathgeber's cellphone away while he was driving; Rathgeber's empty wallet was discovered a few days later by a mowing crew; at 5:04 a.m. on April 24, 2017, surveillance video showed that Hagan returned to Rathgeber's apartment and used Rathgeber's keys to unlock her vehicle; later that day, Hagan attempted to sell Rathgeber's concert tickets; and Donna testified that Hagan admitted to accidentally shooting Rathgeber and throwing the gun away in a dumpster.

[22] Hagan failed to introduce probative evidence to support a finding that additional testing of these items would “provide results that are reasonably more discriminating and probative of the identity of the perpetrator” or “have a reasonable probability of contradicting prior test results.” Ind. Code § 35-38-7-8(3)(B). Hagan also claims that he would not have been convicted if the “exculpatory results had been obtained through the requested DNA testing and analysis,” but he failed to present evidence to show a reasonable probability of such exculpatory results. I.C. § 35-38-7-8(4). Accordingly, we conclude that the PC Court did not err by denying Hagan's petition for forensic DNA testing. See, e.g., Matheney, 834 N.E.2d at 664 (holding that Matheney failed to make a prima facie showing that he would not have been convicted or received as severe a sentence if favorable DNA test results were obtained given that the evidence that Matheney committed the murder was “overwhelming”).

II. The PC Court did not err by denying Hagan's cross-motion for summary judgment.

[23] Next, Hagan argues that the PC Court erred by denying his cross-motion for summary judgment.⁸ Indiana Post Conviction Rule 1(4)(g) provides that summary disposition in a postconviction proceeding is appropriate when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Our Supreme Court has held that “the well-established summary judgment standard of Indiana Trial Rule 56(C) is applicable.” State v. Daniels, 680 N.E.2d 829, 832 (Ind. 1997). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; T.R. 56(C). The burden is on the moving party to prove each element of its claim by admissible evidence and to establish that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Daniels, 680 N.E.2d at 832. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; the opponent may not simply rest on the allegations of the pleadings. Id.

[24] Hagan first argues that his cross-motion for summary judgment should have been granted because the State failed to file a response or designate evidence in response to the motion. Trial Rule 56(C) provides: “Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.” Accordingly, Hagan was not automatically entitled to summary judgment because the State failed to file a response or designate evidence. Rather, Hagan still had to demonstrate that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law.

[25] To demonstrate that he was entitled to summary judgment on his claim of ineffective assistance of trial counsel, Hagan was required to show that no genuine issues of material fact existed and that he was entitled to judgment as a matter of law regarding the following: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Hagan contends that his cross-motion for summary judgment and designated evidence established that his trial counsel was ineffective for failing to subpoena Rice and other individuals in the Snapchat video to testify; failing to present evidence of Rice's Twitter direct messages; failing to object to Agent Horan's cell phone data testimony; failing to object to the admission of the empty firearms box; failing to request jury instructions on lesser included offenses; and failing to seek the suppression of Hagan's statements to Donna pursuant to Article 1, Section 13 of the Indiana Constitution.

[26] Our review of the designated evidence, however, shows that genuine issues of material fact exist and that Hagan was not entitled to judgment as a matter of law. In general, “[t]he issue of the effectiveness of counsel is an evidentiary question.” Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011) (citing Sherwood v. State, 453 N.E.2d 187, 189 (Ind. 1983)). “Resolution of the issue revolves around the particular facts of each case.” Id. “Thus, some factual determinations must be made.” Id. Each of Hagan's arguments requires factual determinations as to his trial counsel's allegedly deficient performance and whether Hagan was prejudiced by the alleged deficient performance. Under these circumstances, we simply cannot say that Hagan was entitled to summary judgment. Accordingly, the PC Court did not err by denying Hagan's cross-motion for summary judgment.

III. The PC Court's denial of Hagan's claim of ineffective assistance of trial counsel is not clearly erroneous.

[27] Next, Hagan argues that he received ineffective assistance of trial counsel.⁹ To prevail on his ineffective assistance of counsel claims, Hagan must show that: (1) his counsel's performance fell short of prevailing professional norms; and (2) his counsel's deficient performance prejudiced his defense. Gibson, 133 N.E.3d at 682 (citing Strickland, 466 U.S. at 687).

[28] A showing of deficient performance “requires proof that legal representation lacked ‘an objective standard of reasonableness,’ effectively depriving the defendant of his Sixth Amendment right to counsel.” Id. (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). We strongly presume that counsel exercised “reasonable professional judgment” and “rendered adequate legal assistance.” Id. Defense counsel enjoys “considerable discretion” in developing legal strategies for a client. Id. This “discretion demands deferential judicial review.” Id. Finally, counsel's “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[29] “To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 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.

[30] Before addressing Hagan's arguments, we note that he did not call his trial counsel as a witness at the post-conviction hearing. “When counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.

A. Donna's Testimony

[31] Hagan argues that his trial counsel was ineffective for failing to object to the admission of Donna's testimony based upon Article 1, Section 13 of the Indiana Constitution. According to Hagan, an objection to Donna's statements would have been sustained because Hagan was under arrest prior to the conversation with Donna and “the right to privately confer with counsel attaches upon arrest under Indiana Constitution Article 1, Section 13.” Appellant's Br. p. 33.

[32] The PC Court rejected Hagan's argument and found:

Assuming arguendo that Hagan was under arrest and invoked his right to counsel prior to the meeting with his mother, the Court does not find that there was a violation of the Indiana Constitution. Here, [Hagan] is essentially alleging that the State and his mother worked in concert to draw a confession out of him after he had requested an attorney. The right to counsel is not violated unless there is evidence that the State took some deliberate action to elicit an incriminating statement.

* * * * *

Here, [Hagan] has offered no evidence to support the contention that his mother was acting as an agent of the State when she met with [Hagan]. Rather, the record clearly establishes that this meeting was requested by [Hagan] and was a private conversation between a mother and son, where the accused emotionally confided to his mother[.]

* * * * *

Therefore, an objection to the admission of [Hagan's] statement under the Indiana Constitution[’s] right to counsel would not have been successful. Thus, [Hagan] has not established ineffective assistance of counsel on this claim.

Appellant's App. Vol. II pp. 49-52 (internal citations and quotations omitted).

[33] On Hagan's direct appeal, this Court reviewed whether Hagan's statements to Donna were inadmissible under the Fifth Amendment and Miranda. We noted that “Miranda concerns ‘are not present’ when the accused ‘speaks freely to someone’ whom he does not believe is an agent of the police.” Hagan, slip op. p. 8 (quoting D.Z. v. State, 100 N.E.3d 246, 296 (Ind. 2018)). We concluded that “Hagan volunteered the incriminating statements during a personal, private meeting with his mother.” Id. at 10. We determined that Hagan did not make “the incriminating statements under improperly coercive circumstances” and we could not say that “law enforcement failed to scrupulously honor Hagan's right to remain silent by arranging a requested meeting with Donna.” Id. Hagan now argues that his trial counsel should have raised an argument regarding Article 1, Section 13 of the Indiana Constitution.

[34] Article 1, Section 13(a) of the Indiana Constitution provides: “In all criminal prosecutions, the accused shall have the right ․ to be heard by himself and counsel ․” “A criminal suspect's right to counsel is a cornerstone of a fair trial, guaranteed by both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana State Constitution.” State v. Taylor, 49 N.E.3d 1019, 1024 (Ind. 2016). “These separate provisions extend similar protections—the right to counsel at any critical stage of a criminal proceeding ‘where counsel's absence may derogate from the accused's right to a fair trial.’ ” Id. (quoting Caraway v. State, 891 N.E.2d 122, 126 (Ind. Ct. App. 2008). “However, the Indiana right provides greater protection because it attaches earlier—upon arrest, rather than only when ‘formal proceedings have been initiated’ as with the federal right.” Id. Thus, once the right to counsel has attached, the defendant has the right to the assistance of counsel at every critical stage of the criminal proceeding.

[35] Under Hagan's argument, once he was arrested and his right to counsel attached, his voluntary statements to others would be inadmissible. We find no support for Hagan's argument. In fact, in the context of the Sixth Amendment, our Supreme Court has held that the right to counsel “is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached.” Wisehart v. State, 693 N.E.2d 23, 61 (Ind. 1998). Rather, the defendant must demonstrate that the action “was designed deliberately to elicit incriminating remarks.” Id.

[36] Hagan cites no authority for the proposition that his voluntary, private, requested meeting with his mother was a critical stage of the criminal proceeding or that the meeting was designed deliberately to elicit incriminating remarks. We have previously held that Hagan had a “personal conversation with his mother, not with an agent of the police.” Hagan, slip op. p. 9. Under these circumstances, Hagan has failed to demonstrate that an objection based upon Article 1, Section 13 of the Indiana Constitution would have been successful. Hagan has failed to demonstrate that his trial counsel's performance was deficient or that Hagan was prejudiced by trial counsel's failure to object on this basis. The PC Court's findings on this issue are not clearly erroneous.

B. Rice's Testimony

[37] Next, Hagan argues that his trial counsel was ineffective for failing to call Rice as a witness during the trial. Hagan contends that Rice could have testified regarding his Twitter direct messages in an effort to demonstrate that Rice was not home on the night Rathgeber was murdered. According to Hagan, this evidence shows that law enforcement relied on “incomplete and inaccurate information.” Appellant's Br. p. 35.

[38] The PC Court rejected Hagan's argument and found:

2. Assuming [Hagan] is claiming ineffective assistance of trial counsel for failure to call Rice, [Hagan] has failed to meet his burden for relief.

3. Trial counsel was able to introduce evidence of third party guilt.

4. Because Hagan's trial attorney elicited this evidence through other witnesses, the decision not to call Rice to testify was likely a tactical decision, and without evidence to the contrary, this Court will defer to counsel's strategic and tactical decisions.

5. Furthermore, [Hagan] failed to call his trial attorney as a witness; therefore, this Court may infer that trial counsel would not have corroborated [Hagan's] claims.

6. Therefore, [Hagan] has failed to prove by a preponderance of evidence that he is entitled to relief on the claim raised in PCR 8B(3)(iv).

Appellant's App. Vol. II pp. 41-42 (internal citations and quotations omitted).

[39] A main theory of Hagan's defense was that Rice was involved in Rathgeber's death. Hagan called Jordan as a witness, and Jordan invoked her Fifth Amendment privilege before the jury. Law enforcement testified regarding its investigation of Rice as a suspect. The jury, thus, was well aware of Hagan's accusation that Rice killed Rathgeber. The failure to call Rice as a witness was likely a strategic decision. Hagan has failed to demonstrate that his trial counsel's performance was deficient.

[40] Moreover, the Twitter direct messages admitted at the post-conviction hearing do not provide the “smoking gun” that Hagan is seeking. In his deposition for the post-conviction proceedings, Rice explained each of the Twitter direct messages. The direct messages are not inculpatory and do not directly contradict law enforcement's investigation, which revealed that Rice remained close to his brother's residence on the night of the murder. Hagan has failed to demonstrate that he was prejudiced by his trial counsel's failure to call Rice as a witness. We conclude that the PC Court's findings are not clearly erroneous.

C. Lesser-Included Jury Instruction

[41] Next, Hagan argues that his trial counsel was ineffective for failing to request a lesser included jury instruction. Hagan, however, fails to specify which lesser included instruction his trial counsel should have requested and to which charge the lesser included instruction related.¹⁰ Accordingly, this issue is waived. See Ind. Appellate Rule 46(A)(8); Loomis, 764 N.E.2d at 668.

[42] Waiver notwithstanding, we note that the PC Court rejected Hagan's argument and found:

ii. Again, [Hagan] did not develop this claim or clarify for the Court what lesser-included instruction he believes trial counsel should have requested. From the context, the Court interprets [Hagan's] argument that trial counsel should have asked for a Reckless Homicide instruction as a lesser-included on Count 1.

iii. Here, [Hagan] likely would have been entitled to a Reckless Homicide lesser included instruction on Count 1 because there was a serious evidentiary dispute as to Hagan's mens rea.

iv. However, [Hagan] failed to call trial counsel as a witness, and this Court will defer to counsel's strategic and tactical decisions.

v. Moreover, this Court finds that trial counsel's “all-or-nothing” strategy was reasonable under the circumstances. Here, the State of Indiana pursued alternative theories of guilt for the murder charge. Hagan was charged with Count 1: Murder (knowingly or intentionally) and Count 2: Felony Murder (killing during the commission of a robbery). While [Hagan] would have been entitled to a lesser-included instruction on Count l, he was not on Count 2. Hypothetically, if the jury found Hagan guilty of Reckless Homicide as a lesser included and guilty of Felony Murder, the life without parole enhancement would have applied equally to Count 2. Thus, trial counsel's all-or-nothing strategy was entirely reasonable because it was the only strategy to avoid exposing [Hagan] to a potential life sentence, and without [Hagan] presenting evidence to the contrary, the Court will defer to trial counsel's choice of strategy. Therefore, [Hagan] has failed to show that trial counsel was ineffective for not requesting a lesser-included instruction.

Appellant's App. Vol. II pp. 47-48 (internal citations and quotations omitted).

[43] Our Supreme Court has held that “a tactical decision not to tender a lesser included offense does not constitute ineffective assistance of counsel, even where the lesser included offense is inherently included in the greater offense.” Bradbury v. State, 180 N.E.3d 249, 254 (Ind. 2022). As the PC Court found, even if Hagan's counsel had requested a reckless homicide ¹¹ jury instruction for Count I and the jury found Hagan guilty of reckless homicide in Count I, the felony murder charge in Count II would have remained. Assuming the failure to request a lesser included offense jury instruction was a strategic decision, the decision was reasonable. See id. (holding that “counsel made a reasonable decision given the circumstances”). Hagan has failed to demonstrate that his trial counsel's performance was deficient.¹² The PC Court's findings are not clearly erroneous.

IV. The PC Court properly denied Hagan's claim of new evidence of material facts.

[44] Finally, Hagan argues that the PC Court erred by denying his claim based on new evidence. Hagan contends that three categories of new evidence were available: (1) evidence regarding Rice; (2) Douglas's testimony, affidavit, expert report, and interview with Jordan; and (3) evidence regarding the “conversation with Donna Hagan at Warrick County Sheriff's Office, denial of [Hagan's] right to counsel, ineffective assistance of counsel and his alibi.” Appellant's Br. p. 38.

[45] Indiana Post-Conviction Rule 1(1)(a)(4) provides that post-conviction relief is available to any “person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims” that “there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.”

[N]ew evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010). The burden of proving all nine requirements rests with the petitioner for post-conviction relief. Id.

[46] We first note that several of the items of evidence Hagan is claiming as newly discovered were not admitted at the post-conviction hearing, including Douglas's testimony and report; Pierson's testimony and report; and Dr. Gobar's report. Hagan makes no argument on appeal that the PC Court abused its discretion by excluding this testimony or reports.¹³ Given the lack of admission of this evidence, Hagan has failed to demonstrate a reasonable probability that this evidence would have produced a different result at retrial.

[47] As for the remainder of the evidence Hagan relies upon, the PC Court rejected Hagan's arguments and noted that Hagan “struggled with the difference between newly discovered evidence and newly available evidence.” Appellant's App. Vol. II p. 53. “By definition, a claim for relief based on newly discovered evidence must not be based on evidence or information of which the claimant had knowledge prior to trial.” Wisehart, 693 N.E.2d at 36. “[I]t is the post-conviction relief petitioner's burden to put forth ‘a particularized showing that all methods of discovery reasonably available to counsel were used and could not uncover the newly found information.’ ” State v. Royer, 166 N.E.3d 380, 398 (Ind. Ct. App. 2021) (quoting Bunch v. State, 964 N.E.2d 274, 292 (Ind. Ct. App. 2012), trans. denied). Hagan has failed to make any argument that the three categories of evidence qualify as new evidence under the nine factors.¹⁴ Hagan has failed to demonstrate that the evidence was newly discovered, due diligence was used to discover the evidence earlier, and the evidence probably would have produced a different result at retrial. Under these circumstances, the PC Court's findings were not clearly erroneous.

Conclusion

[48] The PC Court did not err by denying Hagan's petition for forensic DNA testing, and the PC Court's denial of Hagan's petition for post-conviction relief is not clearly erroneous. Accordingly, we affirm.

[49] Affirmed.

FOOTNOTES

1.   The State presented evidence that Hagan deposited a check written on Rathgeber's account for $300 for groceries, and the check was dishonored.

2.   Rice was later charged with murder and neglect of a dependent resulting in death, a Level 1 felony. Rice was convicted of neglect of a dependent resulting in death, and this Court affirmed his conviction on appeal. See Rice v. State, No. 20A-CR-1193 (Ind. Ct. App. Feb. 18, 2021) (mem.).

3.   This Court affirmed except it concluded that double jeopardy required Hagan's felony murder conviction to be vacated and his robbery conviction to be reduced to theft, a class A misdemeanor.

4.   Hagan filed a motion to certify the order for interlocutory appeal, which the PC Court denied.

5.   Douglas contacted Jordan and told her that he “was looking at doing a research grant on individuals who had their child killed by their significant other.” PCR Tr. Vol. II p. 113. Douglas did not tell Jordan that he was interviewing her as part of Hagan's petition for post-conviction relief. In this appeal, Hagan's counsel filed a notice of related case, which involves a disciplinary action filed against counsel based upon counsel's involvement in this interview.

6.   The State explains that “RN numbers are issued by the Federal Trade Commission to manufacturers in the textile industry to identify products made by the same manufacturer.” Appellee's Br. p. 18.

7.   Hagan claims that Rathgeber appeared to have a cigarette burn on her ankle, but the pathologist testified that Rathgeber had a scuff on her ankle. The head wound was not immediately fatal, and crime scene photographs showed that Rathgeber had moved her leg back and forth in the gravel. Hagan cites no evidence that Rathgeber had a cigarette burn on her ankle.

8.   Hagan makes no argument regarding the PC Court's partial grant of the State's motion for summary disposition.

9.   Although Hagan repeatedly mentions ineffective assistance of appellate counsel, he makes no specific arguments regarding appellate counsel. Accordingly, his argument is waived. See Ind. Appellate Rule 46(A)(8); Loomis, 764 N.E.2d at 668.

10.   Indiana uses a three-step analysis to determine whether a lesser-included offense jury instruction should be given.First, the court must determine whether the lesser offense is inherently or factually included in the charged offense. If it is either, the court must then determine whether “a serious evidentiary dispute” exists between the elements that distinguish the offenses. In other words, there must be sufficient evidence for the jury to find the defendant committed the lesser offense but not the charged offense. If a dispute exists, the court must give the instruction.Larkin v. State, 173 N.E.3d 662, 668 (Ind. 2021) (citations omitted). Hagan makes no argument regarding any of these steps.

11.   On appeal, Hagan briefly mentions voluntary manslaughter and involuntary manslaughter. Hagan, however, did not raise these to the PC Court, and the arguments are waived. See Ind. Appellate Rule 46(A)(8); Loomis, 764 N.E.2d at 668.

12.   Hagan also argues that his trial counsel was ineffective because of cumulative errors. We, however, find no cumulative errors that warrant a finding of ineffective assistance of counsel.We also note that Hagan raised several arguments in the context of his cross-motion for summary judgment—i.e., the liquor store video and Agent Horan's testimony regarding the cell phone locations. Hagan did not, however, make those arguments on appeal in the context of his ineffective assistance of trial counsel claim. Hagan raises those arguments in his reply brief, but it is well-settled that a party may not raise an argument for the first time in its reply brief. See Akin v. Simons, 180 N.E.3d 366, 375 (Ind. Ct. App. 2021) (“[T]he law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived.”). Accordingly, these arguments are waived.

13.   In a footnote, Hagan states: “Petitioner's appeal of the trial court's rulings that all three (3) of Petitioner's expert reports are inadmissible are sub-issues regarding the trial court's denial of Isaiah's claims for ineffective assistance of trial counsel and evidence of material facts, not previously presented and heard, that requires vacation of Isaiah's conviction and sentence in the interest of justice under Ind. Post-Conviction Rule 1(1)(a)(4).” Appellant's Br. p. 6 n.2. Hagan, however, never argued on appeal that the PC Court should have admitted the expert reports.

14.   Hagan argues that if the evidence fails to meet the nine factors because trial counsel “failed to exercise due diligence, then that further demonstrates the prejudice that warrants post-conviction relief on his claim for ineffective assistance of trial counsel.” Appellant's Br. p. 39. Much of this evidence, however, was not raised as part of Hagan's ineffective assistance of trial counsel claim in this appeal. Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8); Loomis, 764 N.E.2d at 668.

Tavitas, Chief Judge.

Bailey, J., and Kenworthy, J., concur