This is an appeal from the denial of a petition for post-conviction relief. P.C. 1, § 7.
The procedural history of this case is as follows. On September 20, 1979, a jury
Appellant raises one issue on appeal: whether he was denied his right to effective assistance of сounsel.
In the post-conviction proceedings Defendant bears the burden of proving his contentions by a preponderance of the evidence. Lamb v. State (1975),263 Ind. 137 , 143, 325 N.E.2d. 180, 183. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Rufer v. State (1980) [274], Ind. [643], 413 N.E.2d. 880, 882. Defendant stands in thе position of one appealing from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conсlusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law. Walker v. State (1978),267 Ind. 649 , 651, 372 N.E.2d. 739, 740.
Popplewell v. State (1981), Ind., 428 N.E.2d. 15.
I
Appellant argues that he was denied effective assistance of counsel. He contends that trial counsel failed to investigate promptly information brought to his attention concerning alleged impermissible coercion of a juror, by other jurors, during deliberations upon the habitual offender charge. In addition, he contends that trial counsel failed to safeguard his right to stand trial in civilian clothing.
These guidelines are to be followed when reviewing ineffective assistаnce claims.
''The proper standard for attorney performance is that of reasonably effective assistance. * * * Judicial scrutiny of counsel's performance must be highly deferential. * * * * * * the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. * * * A * * * claim * * * has two components. First the defendant must show that counsel's performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v. Washington (1984),466 U.S. 668 ,104 S.Ct. 2052 , 2064, 2065,80 L.Ed.2d 674 .
Price v. State (1985), Ind.,
These are the facts from the record which pertain tо appellant's first contention. Almost immediately after the second trial on the second habitual offender charge, appellant communicаted to his trial counsel that the father of one of the jurors
On these facts presented at the hearing on the post-conviсtion petition, trial counsel's responses to receipt of these two communications were not deficient. There are several elemеnts which so diminish the urgency and import of the communications as to support the reasonableness of counsel's limited response. First, that juror sat in determination of prior convictions and not guilt. In determining habitual offender status, critical evaluations by the trier of fact going to moral and state of mind issues are not present. Second, neither of the informers had first hand knowledge of the relevant events. Third, the information itself did not reveal the nature or extent of the сoercion claimed to have occurred. Fourth, the information concerned the interchange between jurors in the deliberative process and was therefore of doubtful legal utility, in that the legal bar to the impeachment of a verdict by a juror who participated in its return is greatest where thе interchange between jurors is the source of the problem, and not a communication from some nonjuror. 28 I.L.E. 327, Trial § 329; see also Stauffer v. Lothamer (1981), Ind.App., 419 N.E2d. 203, 217. From this viewpoint counsel's responses were not deficient.
These are the facts from the record which pertain to appellant's secоnd contention. According to appellant's testimony at the post-conviction hearing, he had, prior to trial on the robbery charge, been seen in jail clothing by prospective jurors as he was being escorted through the court room with several other defendants to the court room lock-up. He was so attired because he mistakenly thought that he was going to plead guilty in exchange for the dismissal of the habitual offender charge. Just before the jury selection process was started, appellant's counsel asked the trial court to permit appellant to change elothes. This was grantеd and the change took place.
On these facts, we do not believe trial counsel's actions were deficient. Trial counsel did not know of aрpellant's alleged exposure in jail clothes to prospective jurors, and the circumstances were such that trial counsel would not have knоwn unless appellant had told him. Apparently, appellant informed trial counsel of the incident after trial counsel filed the appellate brief on direct appeal. Therefore, it was impossible for trial counsel to request remedial action of the trial court or to preserve the issue for appeal. Nevertheless, the circumstances do not indicate that the alleged exposure in jail clothes to prospective jurors prejudiced appellant's right to a fair trial. Appellant testified that he was escorted through the court room with several other defendants. This significantly diminishes the possibility that the prospective jurors' attention specifically focused on him. Furthermore, there has been no showing that the prospective jurors who allegedly saw him were on the jury that tried him.
Appellant's counsel was not ineffective.
Denial of post-conviction relief is affirmed.