*1 V. deprived fair
Finally of a contends he was the defendant agree. every nearly point At this we do trial. With sought exceed the bounds prosecutor where the trial delivered judge him and halted admonish- propriety, before, the jury. defendant As have stated we ments perfect trial, not a one. a fair but is entitled case, having in this the entire record reviewed After seeking prosecutor apparent constantly it is believe only prevented from the record with error to cloud judge. accomplishment We do an alert not con- variety activity prosecutorial and an affirmance done ill- as condonation of this case not to be considered of his attempts. advised is affirmed. C.J., concur; Arterburn,
Givan, Prentice, JJ., DeBruler and participating. J., not Reported N.E.2d at 360
Note. — C. Roberts
Frank State of Indiana. Filed March [No. 576S136. 1977.] *2 Levinson, Lustina, Merrillville, Donald P. for Levinson & appellant. Sendak, Lesly Bowers,
Theodore L. Attorney General, A. Deputy Attorney General, appellee. for Appellant, Roberts, J. The Frank C. was
Arterburn, charged by 1973, 20, affidavit on March the crimes commission attempt felony of or (robbery) to commit while a armed, (Burns 1975), Ind. Code infliction §35-12-1-1 injury in the attempt robbery, commission orof commit a 1975). Code (Burns 1975, 3, On December §35-13-4-6 he was convicted on jury imposed both counts. The a deter- minate twenty-five years sentence of for the armed conviction. Appellant was sentenced to concurrent sen- imprisonment tence life ap- his second convicion. This peal is taken from August the trial 4, 1976, court’s denial on - of a belated motion to correct errors.
The evidence at trial 1973, revealed that February Appellant attempted to the male rob chorus of the L.G. Baptist Chicago, Church in East Indiana. The chorus was rehearsing when, at p.m., about Appellant 8:00 walked holding gun. into the church He drug shouted he was money. addict and grabbed wanted When he pianist, Scarbrough, gun Yelma and held neck, to her Scar- Mrs. gun
brought struggled hand held the free and ensued joined in and a scuffle chorus air. Members In knee. shot the chorus members was in which one of until floor end, held Appellant was subdued police arrived. arrested, found to be was was
When the a hos- symptoms taken to experiencing and was withdrawal drug at time administered and the pital. A February 11, police to the station. On taken gave police in a.m., a statement about 10:30 evi- into This confession admitted which he confessed. gun shooting. Five trial, dence at as was involved charged testified, as arrest- eyewitnesses did the to the crimes ing confession police to whom the and the officers officers was made.
I. *3 presented by appeal the is that The first contention Appellant’s provide effective pauper trial counsel did not legal general support contention representation. In of things Appellant presents the list of contends his a goes on preparation failed in his He then to do trial. argue apparent preparation this lack from to of performance trial. neglected steps” allegedly by defense list of “routine as reads follows:
“1) Devoting ample client to time the become atuned presented. issues to the
2) filing discovery of routine motions. The record by in this case discloses no such motions filed Attorney Reardon on his client’s behalf. 3) request A addresses counsel for a list names of call. of witnesses that State intends to 4) taking depositions of of In a State’s witnesses. question this, have identity as of case such loomed could might large. possible It is that defense counsel discrepencies testimony of perceived have the State’s depositions importantly, witnesses. More shooting, whether exact nature clarified or accidental. intentional 5) Inquiry suppressible items exist. as to whether or not it suppress, If appears there was to as in fact basis to move suppress was, those there in fact move
items. 6) mitigating example, Inquiries into factors. dis- For and, covery existed, whether character witnesses ex- further whether the Defendant in an had lived arrest, emplary fashion since the date of the which was prior (1) year trial. in excess of one to the date of jury penalty, In a consideration case where the assesses such might meaningful. have been 7) Basic research the crimes into various elements of charged possible existing as research as well into de- fenses. 8) preparation adequate jury Eesearch and instruc-
tions. negotiations.” 9) Inquiries possibilities plea into the highly speculative misleading, this list We find and often significance and note that the failed to has show prejudice or which attaches to of its items. For the sake organization specific allegations group shall these we can. best discovery. pre-trial
Items 4 concern 3 and note at We discovery the outset was obtained in this case. hearing
record of the belated motion given correct errors shows that defense counsel was full prosecution file. That contained access to file statements persons prosecution fact, later called as witnesses. In record of reveals one witness was through effectively impeached the use such statement. struggle (That pre- cross-examination centered on the *4 the defense was ceded what contended an “unintentional” shooting.) or “accidental” Appellant presents no
The facts which that show here not was discovery employed pre-trial sufficient. No 76 presented No witness
evidence is as undiscovered. unimpeached. impeachable It presented is and as discovery appear would thus no motions for that were depositions no were neces made and were taken none because sary. appellant complained The upon an that error burden prejudicial. State, (1974) was Hester v. 315 262 N.E.2d 351. categorized investiga- may concerning
Items 5 and as pre-trial discovery tion of it facts. Our discussion of makes inquiry that clear some into con- the facts of this case again, Appellant ducted. present Once evi- has failed to inquiry dence to that show sufficient. primary evidence offered question testimony hearing is his on his motion belated short, correct testified, errors. He trial that his counsel consulted with him for about five minutes trial and before questions regarding put no the facts of were the case him. Appellant’s trial he con- testified sulted with his client for hour hour to an half before (This length trial. later.) will time be discussed judge stated Appellant’s inclined to believe any counsel. In event, presents this testimony a clear conflict appellate evidence which an court cannot resolve. investigation We cannot find defense the facts inadequate of this case Again, on this basis. any present
fails to facts undiscovered counsel. speculates mitigating He circumstances were investi- gated, during stressed, but the reveals record that the defense argument final witnesses, the cross-examination of factors of the addiction nature “accidental” shooting. “mitigating These circumstances” em- are phasized repeatedly nothing brief. There that there to show others. does contend that his confession suppressed. nothing record, There is not seek suggests thfit defense counsel suppression did *5 The the facts of case. unacquainted with he
because was hearing was his confession alleged that his after undergoing heroin and withdrawal he was while made There is no if he shot” talked. promises “another of police ¿ware not that defense counsel was shows evidence clearly well-aware shows that was The record of this claim. Appellant’s addiction. simply likely chose think it more that defense We suppression the confession in case. of not to seek fully of was advised that record shows given. Ap- rights was before statement his Miranda hospital appeared “normal” pellant been treated at and had judgment police questioned It was him. within the when suppress that a motion the trial counsel to determine to Appellant presents no facts fruitful. to show not be was erroneous. this decision overlaps Appel- items 7 and 8 of the
This discussion
legal
list,
research.
items relate
lant’s
which concern
These
Appellant’s
in the
to
that a de-
contentions contained
brief
upon
capacity”
“diminished
the “accidental”
fense based
or
shooting
(We
presented.
have
nature
already
However,
that such
defense was
noted
offered.
mitigating
presented
to
related
circumstances
defense
jury’s
case.)
power to sentence in this
record
While
legal
here,
research
indicates
no
was conducted
do
any
necessary.
that it can
said
think
robbery,
underlying
felony
for the crime of
Conviction
charge
attempt
of commission
or
commit
to
requires
felony
armed,
proof only
general
while
knowledge. Gregory
intent
State,
criminal
(1973) 259 Ind.
within decide capacity” simply would under the ished defense not work nothing facts this case. There is in the record which shows legal possess that the did not knowl- edge necessary make decision. competently rejected possible
If these defenses were counsel, certainly proper in- it to submit concepts. structions on those does not contend given by of the instructions court were erroneous, inadequate or and the failure of defense counsel *6 submit other instructions cannot be indication an considered incompetence. purported failings attorney qualified
Item 9 of the list of is body Appellant’s argument. in acknowledged the It is bargain plea negotiated by that the counsel, Appellant under which guilty the pleaded would have exchange to armed in for a recommendation of years. contends, determinate sentence of ten Appellant bargain plea negotiated that was not within prescribed by the time “an informal governing rule of court” guilty pleas. the submission of argument
This First, fails on two counts. con- the record tains no evidence of “informal rule of court” which negotiated have hindered submission plea. bargain evidence in the record is plea that the “ac- ceptable parties Second, all concerned.” bargain. rejected plea We do not see that prejudiced here, can be said to been even if it is assumed bargain plea that the accepted by would not have been the trial of its local court because rules. item 1 list, consider on the concerning
We Appellant, devotion of time to the at this time in our discus- it seems required sion because that amount of consultation degree must depend in this case to some on items other previously discussed. The facts of complex. this case are not
79 discovery required. Full legal research was Extensive that think counsel. We do was afforded defense can, given under these this case pre-trial consultation of law. inadequate as a circumstances, matter considered Jackson Wynn State, (1976) Ind. 493. 352 N.E.2d v. State, (1975) 339 N.E.2d goes allegations, listing specific these After argue preparedness “lack on to that his trial counsel’s urged through his the record.” It face of shows closing opening perfunctory statements were inconsequential. of witnesses was It cross-examination pointed out that no witnesses called the defense. persuasive. of this is None attorney Appellant’s counsel, shows that record gave opening twenty years experience, state- brief
of some closing find and a more extensive statement. cannot ment We reading brevity inadequacy equal or ineffectiveness. A they understandable those statements reveals that are de- There there is no well-reasoned. are some cases which required An is not to fake fense. one. specifically court found ade- already
quately cross-examined the We have State’s witnesses. prosecution appears to have noted one witness for impeached. replete effectively The record is with defense *7 objections trial lack were sustained the court. No apparent preparedness parts from record. these the cited witness as not called testify expressed He testified that to his trial himself. regarding testify a desire to his addiction and his attorney testified, Ap- of intent. His lack felony pellant prior had convictions and it is clear present testimony such of trial decision matter engage speculation tactics. This cannot Court as to what advantageous strategy. more may have been a Kerns State, (1976) 39, 265 701; Ind. 349 N.E.2d v. Blackburn v. State, (1973) 5, Ind. 260 291 N.E.2d
80
Incompetency
particular
revolves around the
546,
State,
(1969)
facts of each case. Thomas v.
251 Ind.
presumption
II. correctly im also contends he was properly robbery for sentenced both armed and infliction
injury
robbery.
commission
Cou
of a
This
Swininger
(1976)
136,
held in
State,
Ind.
352
v.
sentencing
N.E.2d
that such
was erroneous:
Johnson
v.
Johnson which the defendants
Coleman robbery. Consequently, a sentence
victed was
have been bar
imposed upon
A conviction
assault
“The armed
v.
State, (1974)
State, supra.”
clearly
State,
battery
upon
the verdict of
robbery
to the
(1970)
embodied
of Mr. Hertel
subsequent prosecution
charge
of which
[262]
253 Ind.
guilty
also
inflicting
upon
convicted,
was embodied therein.
[164],
infliction of
defendants were
313 N.E.2d
robbery
for the armed
just
injury
N.E.2d
injury
as their
charge.
803;
535;
con-
This cause is remanded to court with upon the sentence conviction. to vacate armed regard court is affirmed with inflicting injury in the commission of conviction robbery. concur; Hunter, Prentice, JJ., DeBruler, J.,
Givan, C.J., Prentice, opinion J., concurs. in which concurs *8 Opinion Concurring ma- in the conclusion of concur both J. I
DeBruler, of denied jority appellant not effective assistance sentence, armed in the vacation of the and regarding necessary our is comment but I feel one further determining representation suffi- whether standards ciently effective. “caught appellant in act” was a case in which
This robbery, he and attempted shot wounded of armed which rather appellant for a trial counsel consulted man. His case time, himself with the State’s familiarized brief bargain. arrange attempted plea discovery, informal to agreement, proceeded rejected attorney appellant When might profile a low trial with termed defense: to what admissibility ap- witnesses, attack did not called no great argue confession, apparently did not pellant’s length. majority opinion the manner which holds that preparations trial was the conducted the strategy, trial Court result of his as to and that decision strategies advantageous speculate not as more will citing chosen, (1973) Blackburn State, than that v. 260 Ind. holding This rule has also 291 N.E.2d been stated as preferable that we will substitute our as to strategy State, (1976) Maldonado for counsel’s. 265 Ind. 843, 850. 355 N.E.2d
Any or inaction action counsel could be viewed strategy.” “trial this Court intention Since disclaims second-guessing trial choice strategy, counsel’s effective representation review of the issue of effectiveness of could guarantee impossible, right and the of the effective become assistance counsel would be farcical. It would seem if our effectiveness of trial efforts review anything, “strategy” to mean the definition of the must defer be limited situations in which more than confronts reasonable alternative counsel. one Choice between strategy; alternatives avoidance reasonable alternative, patently or of a unreason- reasonable selection mistake, especially able one is mistake. An if isolated serious, representation, not amount to ineffective but need *9 determining effectiveness. should be considered “vigorous” In case failure to conduct a danger antagonizing jury, is reasonable because of the appellant’s power which had the choose armed Similarly appellant testify a decision sentence. to have jurors to his heroin addiction could well alienated sympathy. rather than their In obtained such cases court’s second-guess refusal trial counsel’s choice of courses appropriate. action is This reasonable from forebearance deciding hindsight cases on basis not, become a rote rationalization which this declines Court safeguard rights minimally criminal defendants’ to even a effective level assistance of counsel.
Prentice, J., concurs.
Reported at
Note. — Mitchell James Brown v. State of Indiana. 376S75. Filed March
[No. 1977.]