CODY v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Joe M. Cody, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. We affirm.

Issues

[2] Cody raises several issues, which we consolidate and restate as the following two issues:

1. Whether the post-conviction court erred when it denied his petition.

2. Whether the post-conviction court erred when it denied his request to subpoena witnesses.

Facts and Procedural History

[3] In Cody's direct appeal, this Court stated the facts and procedural history as follows:

On February 5, 2021, Cody, Brian Gilbert, Gilbert's girlfriend Julie Rutan, and many others patronized the Cozy, a bar in Columbus. Reggie Brown, the bartender, knew both Cody and Gilbert. He observed Cody arrive there at around 9:30 p.m. and noted that Cody “seemed like he was agitated about something.” And when Gilbert and Rutan walked into the bar, Rutan observed that Cody was “very like combative, like trying to fight.” She thought he was “trying to get kicked out by the bartender.”

At around midnight, Brown the bartender heard Cody loudly say over the din of the crowd, “I'm Joe Cody; I'm a man if anybody wants to do anything about it; I'm right here.” He approached Cody and asked, “what's going on?” Brown then learned that an unidentified patron had shoulder checked Cody. Brown returned to his duties after Cody appeared to calm down. But, he later overheard Cody say, “I'm Joe Cody, if anybody wants to do anything. I'll be outside.” Cody walked outside, followed by numerous patrons.

As Gilbert, Rutan, and some friends went outside, Gilbert said to Cody, “why don't you just go home[?]” Gilbert and Cody then engaged in a verbal altercation. Brown went outside where he positioned himself between Cody and Gilbert, deescalating the situation, and ultimately convincing the other patrons to go inside. Gilbert, Rutan, and their friends returned to the bar and remained there until last call or closing time, which was around 3 a.m.

Unbeknownst to Gilbert and Rutan, Cody was in the parking lot waiting for them. They were walking toward Gilbert's truck when Cody “blindsided” them by approaching from between a row of cars, “[l]ike he was ready to fight [Gilbert].” Gilbert told Cody that he “didn't want any issues” and he “just wanted to go home.” Cody then charged at Gilbert, and the two began shoving each other. Cody punched Gilbert, pulled him to the ground, and knocked him out. Once Gilbert was unconscious on the ground, both motionless and defenseless, Cody struck him five more times. Cody walked away and a woman approached him.

Gilbert regained consciousness and heard Cody tell the woman that he was going to beat her up. Gilbert, who was “stumbling quite a bit” after being helped up by others and who was still in “blackout mode,” approached the woman and told her to stay away from Cody. Someone pushed Gilbert down from behind. Somebody called the police, and when officers arrived, they saw Gilbert lying unconscious on the ground. He was bleeding profusely from the forehead, his head was swollen, and his eyes were swollen shut. Emergency Medical Services caregivers decided to airlift Gilbert to a hospital in Indianapolis due to the extent and nature of his injuries. Gilbert sustained a severe brain hemorrhage, a broken orbital socket, a concussion, and lacerations on his face. He remained in the hospital for three days. Cody, however, was uninjured.

While speaking with an officer, Cody explained that Gilbert brought himself into the situation voluntarily. However, surveillance footage of the parking lot outside the Cozy depicted Cody in a truck in the parking lot at 2:50 a.m. A car pulled alongside Cody's parked truck. He exited and sat down in the passenger seat of the car. The driver of the car then repositioned it to a different spot in the parking lot, one which faced the direction where Gilbert and Rutan exited the building. The video then depicted Cody's brutal attack on Gilbert as Gilbert lay motionless and unconscious on the ground in the parking lot.

Cody v. State, No. 23A-CR-3066, 2024 WL 3964119, at *1-2 (Ind. Ct. App. Aug. 28, 2024) (mem.) (record citations omitted).

[4] The State charged Cody with battery, as a Level 5 felony. The court then held a jury trial. From the time the State filed its information through the conclusion of the trial, Cody was represented by four attorneys. During the trial, the State presented the testimony of Gilbert and Rutan as well as the testimony of Detective Maren McCrary. At the conclusion of the trial, the court provided the jury with an instruction on self-defense. The jury found Cody guilty as charged, and the court sentenced him to five years, with four years executed in the Department of Correction and one year suspended to probation.

[5] Cody, represented by appellate counsel, appealed his conviction and sentence. Cody asserted that the State had failed to present sufficient evidence to rebut his claim of self-defense and that his sentence was inappropriate in light of the nature of the offense and his character. This Court found that the evidence most favorable to the verdict showed that Cody had rendered Gilbert unconscious and then punched him five more times, which negated his claim of self-defense. And this Court found that his sentence was not inappropriate. Accordingly, this Court affirmed his conviction and sentence. Id. at *4.

[6] Thereafter, Cody, pro se, filed an amended petition for post-conviction relief and raised the following issues:

• That he was actually innocent because the State had failed to present sufficient evidence to rebut his claim of self-defense and because there was newly discovered evidence.

• That his trial counsel had been ineffective for failing to challenge the charging information and probable cause affidavit.

• That his trial counsel had been ineffective for failing to raise an adequate defense by not requesting the pattern jury instruction on self-defense.

• That his trial counsel had been ineffective for failing to adequately investigate: a civil tort claim that Gilbert had filed against him, which he contends contains statements that differ from Gilbert's trial testimony; the cause of Gilbert's injuries; and individuals who he believed had knowledge of the incident.

• That his trial counsel had been ineffective for failing to impeach Gilbert and Rutan.

• That his trial counsel had been ineffective for failing to object to prosecutorial misconduct.

• That the trial court had abused its discretion when it allowed the State to introduce as evidence certain photographs of Gilbert and the testimony of Detective McCrary.

• That his appellate counsel had been ineffective for failing to raise the incredible dubiosity doctrine on appeal and for failing to argue sufficiency of the evidence as to causation.

• That his trial counsel had been ineffective for failing to request an instruction for a lesser-included offense.

• That his trial counsel had been ineffective for failing to advise him of trial procedures.

[7] Cody also requested that the post-conviction court issue subpoenas for Detective McCrary, Gilbert, and Rutan. Cody argued that Detective McCrary would testify “as to why her affidavit charging the defendant is inconsistent with her trial testimony.” P.C. App. Vol. 2 at 57. Cody then asserted that Gilbert would testify to “a new line of questions consistent” with the petition for post-conviction relief and that Gilbert's testimony “is required because this witness’ testimony is probative and relevant to the claims presented” in the petition. Id. at 59. And he claimed that Rutan's testimony was necessary to “clarify the fraudulent nature of previous testimony” and was “required because this witness’ testimony is probative and relevant to the claims presented” in his petition. Id. at 61. The court denied all three requests, finding their testimonies would not be “relevant and probative” and that Cody could “question his previous attorneys[.]” Id. at 80.

[8] Following a fact-finding hearing at which Cody's trial and appellate counsel testified, the post-conviction court entered its findings of fact and conclusions of law denying Cody's petition. This appeal ensued.

Discussion and Decision

Issue One: Denial of Post-Conviction Relief

[9] Cody first asserts that the post-conviction court erred when it denied his petition for post-conviction relief. As our Supreme Court has stated:

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

Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017). On appeal, Cody raises numerous issues, which we address in turn.

Insufficient Evidence

[10] Cody first asserts that the court erred when it denied his petition for post-conviction relief because “the evidence at trial was insufficient to convict him.” Appellant's Br. at 15. He maintains that there were “inconsistent statements” as to whether he had acted in self-defense. Id. at 17. However, Cody specifically challenged the sufficiency of the evidence to negate his self-defense claim in his direct appeal. It is well settled that “[i]ssues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata.” Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). Because Cody raised this issue in his direct appeal, it is res judicata and not appropriate for his petition for post-conviction relief.

Newly Discovered Evidence

[11] Cody next contends that the court erred when it denied his petition because there is newly discovered evidence that mandates a new trial. New evidence mandates a new trial only when a defendant demonstrates that: (1) the evidence has been discovered since 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) it 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. Taylor v. State, 840 N.E.2d 324, 329-330 (Ind. 2006).

[12] On appeal, Cody does not specifically indicate what evidence is newly discovered; he merely asserts that “the evidence put on record at the PCR hearing wasn't admitted” at his trial and that Rutan and Gilbert “gave new theories” of the offense. Appellant's Br. at 25. However, Cody states that the evidence was “not in existence until [his] jury trial.” Id. Thus, he seems to acknowledge that the evidence existed at the time of his trial. As such, the evidence is not newly discovered. In any event, to the extent that Cody contends that Rutan and Gilbert gave conflicting testimonies, those inconsistencies were for the fact-finder to resolve. And, as discussed further below, Cody's trial counsel specifically pointed out those inconsistencies during cross-examination.

Admission of Evidence

[13] Cody also asserts that the trial court abused its discretion when it admitted as evidence photographs of Gilbert and Detective McCrary's testimony. However, both of those claims were available on direct appeal but not raised. Accordingly, they are waived. See Ward, 969 N.E.2d at 51.

Effectiveness of Trial Counsel

[14] Cody next contends that the post-conviction court erred when it denied his petition because he was denied effective assistance from his trial counsel.

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

Humphrey, 73 N.E.3d at 682. Failure to satisfy either of the two prongs will cause the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Indeed, most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id. On appeal, Cody raises nine allegations of ineffective assistance from his trial counsel, which we consolidate into the following six issues.

Failure to Challenge Information and Probable Cause Affidavit

[15] On this issue, Cody first asserts this his trial counsel were ineffective for failing to challenge the State's information and probable cause affidavit. As for the charging information, Cody contends that it was “defective” and that his counsel should have filed a motion to dismiss the charges against him on that ground. Appellant's Br. at 30. Indiana Code Section 35-34-1-2 provides that a charging information is required to include the name of the offense, the statutory provision alleged to have been violated, the nature and elements of the offense charged, the date and time of the offense, the place of the offense, and the name of the defendant. Here, the charging information named Cody; alleged that, on February 6, 2021, he had knowingly or intentionally touched Gilbert in a rude, insolent, or angry matter resulting in serious bodily injury; that, as a result, he had committed battery resulting in bodily injury; and that he had allegedly violated Indiana Code Section 35-42-2-1(c)(1) and g(1). That information adequately complies with Indiana Code Section 35-34-1-2, and his counsel were not ineffective for failing to challenge it.

[16] Similarly, Cody alleges that his counsel should have objected to the “sham” probable cause affidavit. Appellant's Br. at 33. He claims that the allegations in the probable cause affidavit were “fully negated” by the video evidence. Id. at 37. However, the jury was able to see the video evidence and, from that, determined that Cody had indeed committed the crime alleged. His trial counsel were not ineffective for failing to challenge the probable cause affidavit.

Failure to Argue Self-Defense or Request a Self-Defense Jury Instruction

[17] Cody also contends that his trial counsel were ineffective for failing to raise self-defense or request a jury instruction on self-defense. However, his counsel argued that Cody had acted in self-defense, and the court instructed the jury on self-defense. See Trial Tr. Vol. 2 at 148. Cody's counsel were not ineffective on this ground.

Failure to Investigate

[18] Cody next argues that his counsel were ineffective for failing to investigate. “When deciding a claim of ineffective assistance of counsel for failure to investigate, we apply a great deal of deference to counsel's judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002), reh'g denied. Establishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what an investigation, if undertaken, would have produced. McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). “ ‘This is necessary because success on the prejudice prong of an ineffectiveness claim requires a showing of a reasonable probability of affecting the result.’ ” Id. (quoting Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998), cert. denied).

[19] On this issue, Cody first asserts that his counsel were ineffective for failing to investigate the civil tort claim Gilbert had filed. Cody contends that there are “inconsistencies” between Gilbert's statements at trial and statements he made in the tort claim, which inconsistencies Cody contends his counsel could have used to impeach Gilbert. Appellant's Br. at 48. First, we note that, contrary to Cody's argument, one of the attorneys who represented him at trial testified that he and Cody “talked about” the civil case and that he “looked into” the case. P.C. Tr. Vol. 2 at 91. Further, that attorney was aware that Gilbert had received a settlement in the civil case but was unaware of how the tort claim differed from Gilbert's testimony. In any event, Cody has not directed us to anything in particular that he believes his trial counsel would have learned or how that would have changed the outcome of his trial. As such, Cody has not met his burden to demonstrate that he was prejudiced by his counsel's performance.

[20] Cody next claims that his counsel should have consulted an expert witness to determine the true cause of Gilbert's injuries. However, the State's theory of Cody's guilt was based on the fact that Gilbert had lost consciousness and not the extent of his injuries. As such, Cody has not demonstrated that there is a reasonable probability that the outcome of his trial would have been different had an expert testified as to Gilbert's injuries when it was alleged that Cody had caused his loss of consciousness, not any other injuries.

[21] Next, Cody argues that his counsel should have investigated Lindsey Church. According to Cody, Church was a “witness at the scene of the crime” and her testimony would have refuted other witnesses’ interpretations of the video evidence. Appellant's Br. at 50. However, one of Cody's attorneys testified that he did not call Church as a witness because her testimony was “clearly damaging” to Cody. P.C. Tr. Vol. 2 at 98. Specifically, he testified that Church was “opposed to” Cody and said “that [Cody was] talking a lot of smack after [he] supposedly knocked someone out.” Id. Counsel concluded that she was an “adverse witness” and that it made “no sense to try to call a witness who's against” the defense. Id. Based on counsel's testimony, Cody has not shown that his counsel performed deficiently.¹

Failure to Impeach

[22] Cody additionally argues that his counsel were ineffective for failing to impeach Gilbert and Rutan. But one of his trial counsel testified that his strategy was to “cross-examine” the witnesses “to reveal that their statements are false[.]” P.C. Tr. at 130. And that is exactly what counsel did. Indeed, counsel thoroughly cross-examined both Rutan and Gilbert. Counsel focused on pointing out the inconsistencies in Gilbert's statements, and counsel got Rutan to acknowledge that she did not remember some of the events. See Trial Tr. Vol. 2 at 53-56, 76-78. Counsel were not ineffective in their impeachment of Gilbert and Rutan.

Failure to Object

[23] Cody next contends that his trial counsel were ineffective for failing to object to prosecutorial misconduct. Specifically, Cody claims that the prosecutor presented “erroneous testimony” by Gilbert and Rutan, “cherry picked” clips from the video exhibits, and “suppressed footage” that could have been used to his benefit. Appellant's Br. at 59, 61. Even if we assume for the sake of argument that Cody's counsel should have objected, Cody has not shown that there is a reasonable probability that the result of his trial would have been different had counsel objected. Cody's counsel thoroughly cross-examined Gilbert and Rutan about the events of the evening, pointed out the inconsistencies in their testimonies, and highlighted Rutan's lapses in memory from the night in question. Thus, any errors in the State's introduction of Gilbert's and Rutan's testimony or omissions from the video were nonetheless placed before the jury by Cody's counsel.²

Failure to Request a Lesser-Included Offense Instruction

[24] On this issue, Cody finally asserts that his counsel were ineffective for failing to request an instruction on a lesser-included offense. However, while Cody asserts that “the facts would prove Cody may have been guilty of a lesser charge,” he does not specify which offense that might have been. Cody has thus failed to meet his burden to show that his counsel were ineffective. In any event, his trial counsel testified: “strategically if you do ask for a lesser included it makes it more likely that the jury could as I say ‘split the baby,’ and you'll in my opinion make it more likely that you can get found guilty of something.” P.C. Tr. Vol. 2 at 122. Thus, Cody's trial counsel made a strategic decision to not seek a lesser-included instruction. “Few points of law are as clearly established as the principle that [t]actical or strategic decisions will not support a claim of ineffective assistance.” See McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (internal quotation and citation omitted). Cody's trial counsel were not ineffective on this ground.

[25] Cody has not shown that his trial counsel performed deficiently or that he was prejudiced by any error.

Effectiveness of Appellate Counsel

[26] Cody next contends that the court erred when it denied his petition for post-conviction relief because he was denied effective assistance from his appellate counsel. We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), cert. denied, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel claims fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013).

[27] On appeal, Cody contends that his appellate counsel was ineffective for failing to raise an issue on appeal. To show that counsel was ineffective for failing to raise an issue on appeal, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To evaluate the performance prong when counsel failed to raise issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record, and (2) whether the unraised issues are “clearly stronger” than the raised issues. Id.

[28] Specifically, Cody argues that his appellate counsel should have argued the incredible dubiosity rule on appeal. Under the incredible dubiosity rule, “a court will impinge on the jury's responsibility to judge the credibility of witnesses only when it has confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly uncorroborated testimony of ‘incredible dubiosity.’ ” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)).

[29] In order for the incredible dubiosity rule to apply, there must be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion, and 3) a complete absence of circumstantial evidence.” Id. at 756. Here, while Cody does not specify which witness’ testimony he believes to be incredibly dubious, it is obvious that the incredible dubiosity rule is neither significant and obvious from the face of the record nor clearly stronger than the issues raised. Rather, it is clear that the rule does not apply. Indeed, none of the factors required for the application of the rule are present: there was not a sole testifying witness, no testimony was inherently contradictory or equivocal, and there was not a complete absence of circumstantial evidence. Because the incredible dubiosity rule does not apply here, Cody's appellate counsel was not ineffective for failing to raise the issue.

Issue Two: Subpoenas

[30] Finally, Cody contends that the post-conviction court abused its discretion when it denied his request to subpoena witnesses. To determine whether to issue subpoenas, the post-conviction court has broad discretion. Johnson v. State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion has occurred if the court's decision is against the logic and effect of the facts and circumstances before the court.” Id. A post-conviction court “must subpoena witnesses for a pro se petitioner ‘[i]f the court finds the witness’ testimony would be relevant and probative.’ ” Hubbell v. State, 58 N.E.3d 268, 277 (Ind. Ct. App. 2016) (quoting Ind. Post-Conviction Rule 1(9)(b)).

[31] In his request to the post-conviction court, Cody argued that Detective McCrary would testify “as to why her affidavit charging the defendant is inconsistent with her trial testimony.” P.C. App. Vol. 2 at 57. He then alleged that Gilbert would testify to “a new line of questions consistent” with the petition for post-conviction relief and that Gilbert's testimony “is required because this witness’ testimony is probative and relevant to the claims presented” in the petition. Id. at 58-59. And he claimed that Rutan's testimony was necessary to “clarify the fraudulent nature of previous testimony” and was required because “this witness’ testimony is probative and relevant to the claims presented” in his petition. Id. at 61. And, on appeal, he simply contends that he wanted to “confront them about their inconsistent statements” throughout the trial. Appellant's Br. at 79.

[32] However, those are all merely attempts to relitigate his trial claims. As outlined in detail above, Cody raised several issues related to trial court error, the effectiveness of his trial counsel, and the effectiveness of his appellate counsel. And Cody had the opportunity to, and indeed did, question his counsel about their performances. In particular, he specifically questioned his trial counsel about their cross-examinations of those witnesses. Cody has not demonstrated how those witnesses would have been relevant or probative to his post-conviction claims. The court did not abuse its discretion when it denied Cody's subpoena requests.

Conclusion

[33] We agree with the post-conviction court that Cody has not shown that his trial counsel were ineffective for any of the grounds alleged or that he was prejudiced by any error. Similarly, he has not shown that he received ineffective assistance from his appellate counsel. And the post-conviction court did not abuse its discretion when it denied Cody's request to subpoena witnesses. We therefore affirm the post-conviction court's denial of Cody's petition for post-conviction relief.

[34] Affirmed.

FOOTNOTES

1.   Cody briefly asserts that his trial counsel were ineffective for failing “to investigate mitigating evidence.” Appellant's Br. at 52. Specifically, he claims that, “if Gilbert would not have chased Cody for three minutes while retreating to force Cody to defend himself,” then Gilbert would not have sustained his injuries. Id. To the extent that is an argument that his counsel failed to investigate that Cody had acted in self-defense, it is clear that counsel did investigate that, as it was counsels’ main defensive strategy.

2.   To the extent Cody's argument regarding the suppressed evidence can be interpreted as an argument that the State failed to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), Cody did not raise that issue in his petition for post-conviction relief. It is therefore waived. See Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004) (“Issues not raised in a petition for post-conviction relief may not be raised for the first time on appeal.”).

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.