*1 George age Watson, 18.' On cross-exam- accomplice, promised been ination, that he had denied Watson testimony. Appel leniency in return for State’s granted subsequently Watson was because contends that lant trial impeach the witness’s fact alone serves leniency, this trial testimony extent that a new to the any disagree. Appellant not offer evidence granted. does We “bargain” reached had been trial a time of that at therefore, that, prosecution Watson between promise leniency. The mere lying about Watson was does lenient sentence received a witness State’s fact lying itself, establish Watson was not, allege exists any evidence other Appellant does not credibility. impeach Watson's refusing trial erred contends requested instructions.
certain of his brief, out nor does instructions in his neither sets cogent argument con behalf he offer Thus, issue. has -this tentions. waived 8.3(A) (7). AP. reasons, judgment foregoing
For all the hereby affirmed. court is DeBruler, C.J., Prentice, concur;
Arterburn, JJ., Given and J., concurs in result. Reported in 303 N. E.
Note. — Graham of Indiana.
Ernest Rehearing 15, 1973. denied [No. 370S56. Filed November January 15, 1974.] *2 Erbecker, Indianapolis, appellant. William C. for Attorney Theodore L. Sendak, Colker, General, Robert F. Attorney General, appellee. Assistant for appeal arising J.* This is an from the denial Hunter, post Appellant relief. conviction was convicted at trial of degree second imprisonment murder and to life sentenced in the Indiana State Prison. by The conviction was affirmed this Court in Graham v. State 307, 268 April 24, 1972, On petition the filed a post conviction relief which was heard and denied on overruling December 1972. From the of his motion to errors, appellant correct appeal. instituted this first contends that he was denied effective as- preparation original sistance of counsel in Ap- for his pellant impugning is not competency the attorney, his trial but alleging rather is that his counsel was not afforded adequate preparation. time for The record that the discloses appointed morning counsel on the was cause Appellant alleges set for trial. court-appointed law- yer only twenty (20) conferred with him prior trial’s commencement. appearing, more, The fact unhesitatingly would lead this Court the conclusion that impaired adequate effective counsel was by lack of preparation where the crime is murder.
our examination of the instant facts does not end here. On appointed, trial counsel was opportunity provide adequate to continue his case following colloquy time. The place took between appellant. the trial court and the
* assigned September 21, This case was this office on bring-out Sheriff, the .defendant. “Alright, “THE COURT: courtroom, jurors Graham, in the Alright, are no Mr. there Brunt, here, the'prosecutor lawyer Mr.' your -today you try jury here to Now, we have a Mr. Millen. if courtroom, they’re not in you tried, but want to your you’re saying. Now, they word hear a don’t morning. him got just criticized. don’t want into this back criticizing Supreme him don’t want Varderman Shack Nedeff Mr. like criticized hearing will time the record of this case. This to, you you understand.” Supreme Court if want it prosecutor case the wasn’t “In the other enough bright this to the trial real get offered that matter record. We in the Shack, he wanted man, same Varderman but you’re you quick, want a trial too. fully prepared, lawyer . coming that’s —who in with a understand.” raising question, “But don’t want P you’re convicted,, be- Court, to the the event offering you want If cause, case a continuance. for'you.” glad *3 to continue continued I’ll be offering His him a continuance. “I’m THE COURT: prepare this I don’t case. had a full chance to has not thing happened happening the same want case, lawyers people are criti- Shack where Varderman morning morning telling you’ve Now, me all this cized. give going to you we’re a trial and your responsibility, want today, but, not you a trial it’s you a trial want a trial we’ll have if Court’s. o’clock jurors to back 2:00 come I told all here. Take you afternoon, continuance. have a can this him, Mr. Millen?” you hear what said choice. Did “Yes,-Your Honor.”
MR. MILLEN: enough?” it COURT: “Is loud THE Judge.” clearly, very “I MILLEN: heard MR. your name?” THE COURT: “What’s “Early DEP. EARLY REID: Reid.” SHERIFF you “Did hear what told THE COURT: him?” “Yes, SHERIFF REID: sir.” DEP.
THE he could COURT: “That have a continuance.” “Yes, sir.” DEP. SHERIFF REID: “Might MR. MILLEN: observe the defendant’s stand- ing away feet about three from the Court.” “Well, THE his his here. COURT: wife’s here and father’s Is that fathér or father-in-law.?” . today.” MR. GRAHAM: to trial “We’ll you THE COURT: “Did you, hear what I said about complaining about it later?” right.” MR. “That’s GRAHAM: you
THE COURT: “Did hear me? right.”
MR. “That’s GRAHAM: THE “If know, you COURT: this c’aseshould you turn out — people never can tell what twelve will do on a this—if way you it, turn out the don’t want I don’t want you raising question you saying .or pre- weren’t you pared, or that did not understand. Have you under- everything you morning I’ve stood said to this ?” “Right.” MR. GRAHAM: “Wife, everything?”
THE COURT: have understood MRS. GRAHAM: “I have.” “And,
THE gentleman?” COURT: who’s this DEFT’S FATHER: “His father.” “Father, have heard Iwhat said? What’s
the father’s name ?” MR. WILLIE “Willie GRAHAM: Graham.” “Alright, Reporter, Mrs. this. show Lawyer appearance Barton withdraws the defendant. Court re-instates attorney Richard Brunt de- for the fendant. Court informs the defendant desires, continuance defendant, and the presence cutor attorney, Deputy of his Richard Brunt and Prose- Millen, now informs the desires Court he a trial this question will incompetency not raise the coun- of . sel reason of the desire of the defendant for a today. Correct?” big THE COURT: “Did understand those words?” saying THE you, COURT: “The reason had this, ago, another couple years case like or three or four *4 today, where a fellow you understand, wanted a trial brought got the like, then, ain verdict he so, didn’t he lawyer question himself another raised the lawyer only spent eighteen hours trying get you know, studying to the case. case— your eighteen here hasn’t had prepare hours time to even, you this case understand.” “Right.” MR. GRAHAM: responsi- it’s “And, to know want THE COURT: wants, I’ve said bility. to person that You’re the today, I?” haven’t maybe, you, five four or times “Right, sir.” MR. GRAHAM: five a continuance “I’ve offered four THE COURT: I ?” times haven’t “Right.” MR. GRAHAM: today?” go “You want to trial still to
THE COURE: MR. GRAHAM: trial to I don't think “Because THE COURT: going it, but, send him quick, he insists on to since
so to trial.” get “Well, Honor, I be able Your won’t
MR. GRAHAM: bond, anyway, want a continuance.” don’t out you. up to a trial “That's Do want today ? have it.” “You’ll you.” “Thank Contrary contention, appellant’s not “forced to was gave inadequate representation. The trial court trial” ample opportunity his appellant than more through a continuance of the court re- cause. The defense postpone explained the the trial peatedly Nevertheless, better assist him. in order to allow upon immediate trial. appellant an insisted argues waived insisting upon preparation by adequate trial time for trial on November immediate As we have stated, voluntary relinquish- previously waiver right. Langley a known v. State ment of Finding waiver of constitutional lightly rights facts not to be undertaken. on the agree case, waive with the State did of this adequate preparation. Appellant rushing possible consequences fully apprised of into affirmatively queried responded whether when as to trial. He had made. the choice he he understood *5 alleging process that denied is also he was due perjured testimony. upon law in that was convicted taxicab records were He contends that certain produced, would show that one of the State’s lying Appellant’s witnesses contention attempt amounts to a belated to introduce evidence known to him at his earlier in order to evidence which controvert Collaterally, convicted him. attacks the character heavy witness, alleging, alia, inter of the same that she is a apparent newly raising It is drinker. evidence, attempting re-argue discovered but is instead sufficiency of the evidence which suffi convicted him. The ciency fully by of the evidence was on the reviewed this Court previous appeal. supra. State, direct v. Graham Post conviction relief appeal. is not a substitute direct (b). 1 1 PC. §
Finding post hearing, no error in the relief conviction judgment hereby of the trial affirmed.
Arterburn, C.J., JJ., Prentice, concur; DeBruler, Givan and J., opinion. dissents with
Dissenting Opinion readily agree majority’s I J. While can with the DeBruler, twenty statement that a time total involving charge for the defense in a case would of murder “impair” right of effective cannot counsel, assistance of conclude from record here that there was and a valid right. sufficient waiver of this necessary proper analysis it is believe issues recognize
presented right appel- that the relinquish upon proceeding lant was called in this amounted nothing outright than less waiver of his Amend- Sixth ment to the effective assistance of counsel. It has explicitly recognized repeatedly both the States United Supreme adequate pre-trial and Indiana Courts prepara- implicit tion time is in the constitutional to counsel. In Powell Alabama S. Ct. Ed. Federal
L. held that: disposition com- criminal is to prompt “The of' cases reaching encourage, result a de- but
mended and stripped crime, fendant, of his must with a serious counsel advise with have sufficient prepare his defense. “ no give court with accused ‘It is vain to guarantee him for it or opportunity to acquaint him- any opportunity giving latter *6 ” of the case.’ U.S. at 59. facts or the law 287 the with self again recognized im- that Court years later Several right clearly de- counsel and to more aspect of portant critical perform in this counsel was the functions lineated pre-trial period: rely upon is entitled to “Prior trial an accused facts, independent examination circum- an of
to make v. . . Moltke pleadings involved. .” Von stances, and laws 721, 316, Ed. 708, L. 68 92 (1948), S. Ct. Gillies 309. interpretation of quite clear in its has been This Court 1, 13, it affects adequate preparation time as both Article § the Sixth right well as Constitution as to counsel of State Amendment of the Federal Constitution. right for counsel “The to counsel includes reasonable par- each trial under the circumstances for opportunity to right is a case if the to be fair ticular crime. safeguard The rights with a of a defendant well right investigate witnesses as and confer with representation counsel.” in 428, 436, subpoena is included them Hay (1947), 75 N. 2d 915. 225 Ind. E. v. State 192, Lloyd 241 170 (1960), Ind. v. State
In the later case of 904, N. E. 2d we stated: charge murder, do however hold that where “We imprisonment life penalty life carries the
which utterly in- itself, significant for period hours was two and one-half a investigation consultation, con- resulting virtual denial of counsel.” 241 right Ind. to the assistance stitutional 199.
337
(1954),
160,
Sweet v. State
233 Ind.
also
N.
2d
See
117
745; Taylor
580;
(1949),
v. State
relinquished right a mere not incidental to his to counsel but aspect of that has been held essential being alleged fulfillment. That its' waiver he have exercised must level reach the of a waiver of Sixth right. Amendment counsel is the waiver of which cannot presumed from a (1966), silent record. Miranda v. Arizona 436, 86 1602, 694;
384 S. Ct. 16 L. Carnley U.S. Ed. v. (1962), 506, Cochran 369 82 884, S. Ct. 8 Ed. U.S. L.
In order for waiver to meet constitutional standards knowingly must be shown to have voluntarily, been made intelligently. 458, Johnson v. Zerbst (1938), U.S. 304 1461; 58 82 Ed. S. Ct. L. (1971), v. State Nacoff 165; Ind. E. 2d Mims N. E. 2d rights voluntary “Waivers of constitutional must be intelligent knowing,
but must be
acts done
sufficient
*7
awareness
sequences.” Brady
S. Ct.
of
relevent
likely
and
con-
circumstances
742,
v. U.S.
from a and examination all of plea such a rendered.” under which is circumstances at 724. U.S. majority presented conclusory waiver in
The and bare inquiry clearly it is insufficient since without opinion here is comprehension understanding of and A defendant decision. can waive this implications of his intelligent only if he Amendment has an aspect of the Sixth attorney understanding can what an do him. It of vague lawyers are have notion sufficient matters. in such The Constitution of assistance sometimes knowledge exactly of have requires a defendant what foregoing by waiver. proceed decision to trial with a aware that his made twenty in spent his defense has of who attorney being unacquainted appel- in his would result with facts; unacquainted with the State’s version lant’s unprepared defense; theory theory case and events; unacquainted unacquainted pre-trial with witnesses; unacquainted potential defense with the State’s examination; possible areas cross witnesses special might usefully instructions which time to the issues raised case. submitted totally alleged waiver set out believe above Since high respectfully to meet these standards must insufficient dissent. Reported E.
Note. — G. (Blue) David Blue v. Brooks. Joanne Rehearing denied Filed November [No. 673S131. January 15, 1974.]