Hudson v. State
375 N.E.2d 195
Ind.
1978
Check Treatment

*1 concerning procedure to correct I believe it is motions error. purport practicing to make unfair this bar for Court engage changes opinions. procedural To rule in written requires practice this leaves the rules unreliable through only practitioner to search to not read the rules but or not the rule has the various cases to determine whether changes If rule set out in the been modified case law. majority summary are to made should be made be present set forth rules and should not be amendment opinion in an of this Court. foregoing compelled to concur in the

For the reasons I feel result in this case.

Pivarnik, J., concurs. Reported at 375 N.E.2d 592. NOTE.— of Indiana. Earl Hudson v. State William April 28, Filed 1978.] 176S5. [No. *2 Kyle Indiana, M. Bailey Conn, Public Defender

Harriette Defender, appellant. Payne, Deputy for Public Pfium, Lee Attorney General, David Sendak, Theodore L. appellee. Attorney General, Deputy jury tried by was Appellant waived Pivarnik, J. inflicting injury in by After his conviction the court. County May 8, robbery Lake perpetration of life im Court, appellant was sentenced Superior Hudson granted Prison. Indiana prisonment in the State and be- to correct errors motion permission to file a belated appeal. lated His motion to correct errors was denied May 6, trial court on January

The record shows that on Joe Davis was doorway apartment beaten and robbed of in the his $10.50 person. January 21, co-defendant and another Edwards On questioning by Gary Department, ap- after Police pellant signed waiving rights Hudson a statement his Although appellant also a written confession. subse- quently any participation crime, according denied in the his written confession and co-defendant Edwards apartment. opened door, followed Davis his As Davis appellant grabbed and held Davis while co-defendant beat him. At evidence, the close of the co-defendant Edwards changed plea guilty and, questioning by after stated present during Hudson com- mission of change the crime. Hudson did not plea.

Appellant argues proceedings two errors below: *3 that the present adequate state failed to and sufficient credible upon evidence which conviction, to warrant and; (2) a appointment the court’s of to appellant and the co-defendant created a severe conflict interest appellant which denied right his Sixth Amendment to effective assistance of counsel.

I. regard With linking to evidence participation to in committed, the crime the record (1) prior shows that: to trial, appellant signed detailing a written confession par- ticipation in the committed; crime the co-defendant testi- present during fied that the activity, criminal and; (3) the victim testified that the co-defendant and an- person other beat and robbed him. The victim’s sole means identifying participant the as the other was that he was about the as same size one of his assailants. argues the trier of fact should given not have

any weight and, extra-judicial to absent confession sup- confession, presented the to the evidence was insufficient port his conviction. extra-judicial order confession to be admitted

In trial, corroborating corpus at must be evidence of the delicti Wright State, (1977) 266

introduced. Ind. delicti, corpus To 363 N.E.2d 1221. establish the showing independent presented the evidence must be specific injury of the kind of and that someone’s occurrence injury. preliminary criminal the cause For the act was of the confession, purpose determining admissibility of the the beyond corpus proven doubt delicti need not be reasonable may be established circumstantial evidence. Cambron In at State, (1975) 262 Ind. 322 N.E.2d 712. the case sufficiently hand, presented evidence established Joe establishing robbed, thereby the neces Davis was beaten and sary corroborating corpus for admis evidence delicti sion of confession. guilt admitted, is direct it evidence a confession

Once State, activity question. Hardin v. criminal of the along weighed 333. It is be determining every item evidence other agent of crime. defendant was the whether assigned supra. Determining weight to each Cambron, there logical drawn inferences be item and the of evidence the trier of fact. LeFlore v. from is the function reviewing the 458, 281 N.E.2d When Ind. judge evidence, court will sufficiency this weigh We look credibility will nor evidence. witnesses the rea state and most favorable at the evidence will not therefrom. A verdict drawn sonable inferences be probative value if substantial evidence there is be disturbed *4 reasonably that infer trier of fact could from which the Matthew v. guilty beyond doubt. a reasonable defendant was 672, (1975) 821. State, Ind. 263 by sufficient Here, was corroborated appellant’s confession 314 establishing corpus

evidence delicti. It therefore properly appellant’s guilt. considered as evidence This along confession with other adduced evidence at trial formed appellant guilty a sufficient to find basis infliction of the injury perpetration robbery.

II. argues appointment of next the court’s one at- torney represent and co-defendant at trial appellant’s right created conflict interest which violated to effective assistance of counsel. guaranteed by

The assistance counsel the Sixth Amend- contemplates unimpaired by ment that it be court ordered

representation requiring attorney to simulta- neously represent parties conflicting interests. States, Glasser v. United 86 L.Ed. However, the fact that one appointed co-defendants does not establish either that his efforts were or that defendant lacked ineffective Langston, undivided assistance of counsel. United States v. Supp. (W.D.Pa. 1971). consistently 194 F. have held We strong presumption that there ais that has com petently discharged presumption his duties. This is overcome only by showing mockery justice, that his actions were a shocking Meyers State, conscience court. Ind. Haddock N.E.2d 298 N.E.2d 418.

Here, there is no appellant’s attorney indication that in- discharged competenly duties. and co-defendant objected representation by Edwards neither the same at- torney, any suggestion nor was there either dis- satisfied with counsel’s efforts. The fact had differing transpired statements as what does not establish a conflict The of interest. differences in their statements only, basically change were details and did theory parties the event. position blaming were not

315 of the Edwards’ statement to absolve themselves. each other appellant’s addi- confession. In similar to event was confes- on his written tion, conviction was based therefore, testimony. We, on the co-defendant’s sion and not right to not denied his constitutional hold that appointed one of counsel when the court assistance effective and co-defendant. court is affirmed. judgment of the trial The J., JJ., concur; DeBruler, Hunter, Prentice, Givan, C.J., opinion. dissents with

Dissenting Opinion agree cannot received J. I DeBruler, by guaranteed him of counsel Sixth assistance effective guarantee represen entitles the accused Amendment. This allegiance is not divided counsel between tation whose conflicting and the interests co-defendant. that of accused Glasser v. 457, States, United S. Ct. 1976) 680; Gaines, (7th Cir., United States v. 86 L.Ed. United States v. (D.C. Bell, 1974) 506 Cir. 529 F.2d “mockery competence” “presumption of and The F.2d 207. determining justice” language place con has no whether defendants, deprive represented flicting jointly interests of representation: accused of effective degree prejudice precise sustained “To determine appointment of court’s Stewart as a result Glasser attorney] co- for Kretske as counsel [Glasser’s [Glasser’s right unnecessary. at once difficult is defendant] ab too fundamental and is assistance

have the indulge as to calculations nice courts solute to allow arising prejudice from its denial.” Glasser amount supra, 75-76, 62 467. States, U.S. S.Ct. at 315 v. United 475, Holloway Accord, Arkansas, (1978) U.S. 53 L.Ed.2d appellant and his co-defendant agree in the trial I initially in were of the defendants the interests Edwards, respective of their sought force to avoid the Both conflict. substantially identical, by police, were which statements recounting offering testimony wholly trial consistent versions alleged Up rested, no of the offense. until the defense actual the interests two had conflict between defendants emerged. representation accused is denied effective Since shown, prejudice actual conflict or other Martin when up the events stage infringement appel- no to this the trial disclose rights. lant’s Amendment Sixth

However, rested, when both sides had before announcing finding judgment, inquired ap- its whether *6 plead guilty pellant Edwards wished to to lesser and offense. refused, agreed, Appellant Edwards but court re- following exchange plea. accepted his Then the ceived occurred: THE

“BY COURT: here, Edwards, yourself. up

Come Mr. Q. anything tells that he doesn’t know Mr. Hudson me about there, was he it. He was not? A. Yes. THE

BY COURT: right, Edwards, you All Mr. the Court now sentences to year Hudson, at the Indiana Farm. State Mr. here, you please step up here, up please ? will come you imprisonment.” to now sentences life Court added.) (Emphasis persuade

Thereupon defense counsel endeavored to guilty; change plea appellant persisted his to his to in refusal. explained: court then THE “BY COURT: already guilty; just found him I asked I if wanted plea. their

to withdraw MR. BY SENAK: nothing guilty [sic], to It had do their in sen- or

tencing ? THE BY COURT: right.”

That’s guilt of his based to a determination was entitled subject upon to cross-examination. evidence received Gladden, 87 S.Ct. Parker 466, 85 Louisiana, L.Ed.2d Turner U.S. Notwithstanding court’s the lower 13 L.Ed.2d 424. question response, upon disclaimer Edwards’ of reliance objected promptly, the improper. Had might question it was an before court withdrawn the have al placed position of divided Trial swered. counsel was appellant from legiance by duty protect question; his duty non-evidentiary his prejudicial conflicted with remarks bargain advantageous plea for secure the benefits of had counsel avoided Edwards. This conflict could have been guilty plea Edwards, appearance whose withdrawn repre arranging of other could continued for the have been by importun sought to this conflict sentation. Counsel resolve bargain. hind ing In himself of the same avail might to do sight appears have been wise it plead declines to a criminal defendant who Nonetheless so. unhindered wisely unwisely, to a defense guilty, or is entitled duty safeguard attorney’s conflicting a co-defendant’s this, bargain. and his conviction denied plea be reversed. should therefore Reported at N.E.2d 195.

Note. — *7 of Indiana. v. State

Orisker Swan April 1978.] Filed 677S409. [No.