*1 Indiana, Appellant-Plaintiff, STATE
Cary JOHNSON, Appellee-Defendant.
No. 49A02-9806-CR-536. Appeals of Indiana.
Court
Aug.
1210
judge repeatedly interrupted proceedings question regarding Jones his tactics questioning of witnesses and to admonish keep him to the focus of his examinations on ease. the issues material to the The court questioning po- for a also admonished Jones permitted lice officer about matters that pri- of State to introduce evidence Johnson’s drug activity. or unrelated When the State sought hearsay concerning to admit evidence drug-related investigations involving prior Johnson, proceedings stopped the court and stated: miscarriage I сan’t sit here and let a of justice justice happen. hap- Or manifested you I pen. probably think that since [sic] prior investigations. I asked about can not let this witness sit here and convict this hearsay given man declaration to him on person who is not a witness this Modisett, Jeffrey Attorney A. General of Jones, try your Mr. I can not case case. Ullrich, Indiana, Attorney Greg Deputy Gen- you, objection give and I cannot for Indiana, eral, Attorneys Ap- Indianapolis, for made, I be but cannot sit here and allow pellant. So, you happen. every that while Indiana, Fanchеr, Indianapolis, Annette open, right because the door is I cannot sit Attorney Appellee. for here and let him convict this man on the testimony of someone that we don’t even OPINION testifying it is and will not be know who So, you I suggest this case. would that RUCKER, Judge your question. move to next [A]nd by jury Appellant-Dеfendant After a trial you suggest pay would attention [a]nd Cary was convicted of two counts of Johnson objections proper. make that are dealing A in cocaine as Class felonies1 and R. at 339-40. possession of cocaine as two counts of Class post-trial In a order the trial C felonies.2 trial, two-day jury After a convicted court the convictions and ordered a vacated charged. Twenty days Johnson as thereaf ineffective new trial based on the assistance ter Jones filed motion for mistrial based of of Johnson’s trial counsel. State entirely representa on his ineffective own contending appeals Indiana now the trial responsi tion. Jones claimed that due to his setting jury’s verdict. court erred aside cases, in other a lack time bilities for disagree affirm. We and therefore preparation, fatigue, hе was not ade quately “griev prepared was the for trial and made The record shows Johnson opera- prejudicial ... target police drug undercover ous and errors that rose to of two R. at 109. September tions in of 1995. On the level of ineffective counsel.” June 1996, 2, charged court the motion the State Johnson The trial denied for mistri October However, citing pre possession responsibility cocaine and al. its with two counts of Attorney injustice, dealing in cocaine. vent manifest the trial court set two counts of queried verdict. as to represented Richard Johnson from aside When Jones 14, 1997, setting through the trial held on whether it was aside the verdict as a November 27, trial, juror, January During thirteenth the trial court answered 26 and 1998. § Ind.Code§ 2. Ind.Code 35-48-4-6. 35-48-4-1.
1211 59(B).4 Trial interlocu- rized to do so Ind. Rule “yes, Supp. I am.” R. at 18. This (Ind.Ct. Davis, tory appeal followed.3 Fisher v. 488 N.E.2d App.1986). arguments various The State advances the trial court support its contention that *3 us, In the trial the ease before However, only granting in a new erred trial. affirmatively if responded court when asked According response. argument one merits juror. However, acting it was thirteenth State, granted trial court
to the because the otherwise. The trial court the record shows juror, as a the court a new trial thirteenth judgment findings did not vacate the and order a new required specific was to set forth upon finding trial court entered no the fact. In this case the trial based vеrdict contends, Thus, findings. the the against weight such State the evidence. was the Rather, trial court erred. on its own motion the trial court determined that a new trial was warranted juror concept The thirteenth is Thus, prevent injustice. regardless manifest 59(J)(7) in Rule under which found Ind. Trial rationale, of the trial court’s stated we will may weigh evidence and the trial court judgment affirm the trial court’s even if its State, credibility. v. 697 witness Jones ruling reasons for are incorrect or even (Ind.1998). 57, sitting as a N.E.2d 59 When State, 907, Taylor absent. v. 615 N.E.2d 912 juror thirteenth the trial court order a Here, (Ind.Ct.App.1993). the trial court cor against new trial if the verdict is the rectly granted ruling In a new trial. on its McKenzie, weight of the evidence. State own to correct errors the trial court motion 1258, (Ind.Ct.App.1991), 1260 576 N.E.2d declared: denied; State, Thompson v. trans. see also (sit 633, (Ind.Ct.App.1992) 590 N.E.2d 634 Court is entrusted with the re- [T]he juror ting as a thirteenth the trial court sponsibility that a to determine manifest determine whether in the minds of “must injustice does not occur. This court cer- contrary reasonable men a verdict should tainly remembers this case. And remem- reached.”). granting a new been When we bers the numerous occasions wherein grounds jury trial on the vеrdict is during the trial of talked with both counsel against weight the of the evidence the trial right ever[y] this case. Fundamental required special findings of court is to enter trial, in accused is the to a fair which setting “supporting oppos fact forth the judgment, this Court’s and think accord- ing upon to eаch issue which a new evidence must, ing to law include the effective assis- State, granted.” Ind. trial is Moore v. 273 Court, therefore, tance of counsel. This is (1980) 268, 335, (quoting Tri 403 N.E.2d 336 judgment in setting aside the this case. 59(I)(7), predecessor al Rule the to Trial This case will be retried. 59(J)(7)). However, we find no Indiana Rule Supp. R. at The court then recused itself authority requiring the trial court enter preamble to and ordered a new trial. The special findings grants it a new trial on when 59(J) part in provides “[t]he T.R. relevant grounds contemplate weighing that do not court, Indeed, prejudicial or if it determines that sifting the evidence. Indiana committed, harmful error been shall take power grant new has courts have the inherent Pur- expressly will cure the error....” sponte trials sua and are autho- such action as direct, cross, page of witness’s or 3. Review of the record in this case was made the initial the by prepare required by App. the State’s failure to difficult R. re-direct examination as compliance 7.1(C). with the Indiana Rules of comply record While the State’s failure to appellate Appellate Procedure. Indiana’s rules pre- Appellate the Rulеs of Procedure did not appellant prepare place the burden on the appeal, heed clude review of this it is advised to proceedings. App. R. file the record of 7.2(A)(3) language Appellate of Ind. Rules 7.2(A)(3)(a) states, "Notations shall be made on 7.1(C) apрeals. in future margins page transcript of each witness, indicating evidence the name of each provides er- motion to correct ”[t]he 4. The rule direct, cross, or and whether examination is court, ror, any, may made the trial if be The record in this case is devoid of redirect.” any party.” any Similarly, marginal the table of notations. fails to list the witnesses much less cite contents 1212 59(J)(1) wag fingers T.R. “such action” antici- and set aside the convic-
suant to pates “Granting] a new trial.” tions.
A trial court has wide discretion to Nothing could be further from the truth. grant correct errors and to new trials. Gre court, Accоrding supreme public to our “The State, 52, (Ind.Ct.App. gor v. 646 N.E.2d 53 they place must have confidence that when 1994). only for an abuse of We will reverse attorney they their trust an will receive An of discretion will be discretion. Id. abuse faithful, professional assistance. If an attor- against when trial cоurt’s action is found ney respond, cannot so he is unfit to contin- logic and effect of the facts and circum profession.” McCarthy, ue Matter of it and the inferences which stances before (Ind.1984). 466 N.E.2d Indiana’s *4 may Id. An be drawn therefrom. abuse of ample Rules Professional Conduct offer a trial discretion also results from court’s guidance lawyers and to sensible who wish that without reason or is based decision is preserve they the both the trust of clients upon impermissible reasons or consider they represent and the courts before which presents ations. Id. The record before us appear. ample trial counsel’s deficient evidence of 1.1 Ind. Professional Conduct Rule reads
performance. Although the trial court does lawyer provide compe- “A as follows: shall Rule, language precise use the it is representation Competent tent to a client. apparent the court reached the conclusion representation requires legal knowledge, the prejudicial or harmful error occurred skill, thoroughness preparation and reason- Accordingly, during the course of trial. ably necеssary representation.” for the trial court set aside the verdict and paragraph following fourth in the comment ordered a new trial. The trial court did not states, lawyer may accept repre- section “A doing. in abuse its discretion so requisite compe- sentation where the level of Judgment affirmed. prepara- tence can be reasonable achieved applies lawyer tion. This a as well to who is
BAKER, J., concurs. appointed unrepresented as counsel for an BROOK, person.” J., opinion. concurs with
BAKER, J., concurring in opinion. conсurs pro- Ind. Professional Conduct Rule 1.3 vides, lawyer “A shall act with reasonable BROOK, Judge, concurring diligence promptness representing in corresponding client.” The are comments wholeheartedly majori- I concur with the particularly apposite to the instant case: result, ty’s reasoning sepa- I but write my rately express poten- lawyer pursue A concern should a matter on behalf tially despite opposition, troublesome ethical issues of a client raised obstruction personal lawyer, facts of this case. inconvenience to the mаy take lawful whatever and ethical conducting charitably After what can be required are measures to vindicate a as a described lackluster defense of his lawyer client’s or endeavor. A cause client, attempted Johnson’s counsel to “fall should act with commitment and dedication by filing on his own sword” a motion for to the interests of the client and with zeal repre- mistrial because of his own ineffective advocacy upon the client’s behalf.... A court, seeking pre- The trial sentation. lawyer’s workload should be controlled so injustice,” vent a “manifest instead vacated adequate- that each matter can be handled tri- Johnson’s convictions ordered new ly- Having al. affirmed the trial court’s deci- (or sion, however, note, unscrupulous I fear that aOn related the first comment to Ind. overburdened) states, even well-intentioned but Professional “A Conduct Rule 1.16 lawyer accept representation counsel feel emboldened to mount less- should not in a clients, performed compe- than-zealous of their matter defenses secure unless it can be knowledge judges tently, promptly, impropеr that trial will have without conflict of completion.” no alternative but to shake their heads and interest and to upon community large pro- at lawyers expected prevail to conscien- only are Not conduct, judges funding safeguard tiously their own but vide additional monitor resрonsibility competent legal all criminal defendants to with the of of are also entrusted performance. counsel. scrutinizing their Ind. Judicial 3(D)(2) following contains the Conduct Canon By expressing my concerns in this
guidelines: separate opinion, I not do wish to be seen as A who receivеs credible'information painting attorneys criminal defense with a indicating a likelihood that a substantial ill-prepared broad brush as or indifferent to lawyer committed a violation of the has clients; personally the needs of their am should take Rules of Professional Conduct ovеrwhelming majority aware that the judge having A knowl- appropriate action. highly criminal defense bar are trained and edge lawyer that a has committed viola- profoundly represent motivated to tion of the of Professional Conduct Rules It clients to best their abilities. is question а substantial as to the raises precisely pro in criminal because “clients” honesty, lawyer’s trustworthiness or fit- ceedings entrusted the defense of their lawyer respects ness other shall profession most fundamental liberties to the appropriate authority. inform the personal integrity al skill and of their attor *5 commentary to this subsection notes however, neys, appropriate that it is to re may “Appropriate action include direct mind the members of the criminal bar that lawyer with the or who communication supreme neither the trial courts nor the viоlation, other direct ac- has committed court of state will allow them to abdicate this available, reporting tion if the violation duty to advo solemn serve zealous authority appropriate agency or other rights. cates of their clients’ body.” agencies or bodies to One Supreme comment refers is the which this Commission, Disciplinary whose inves-
Court
tigations of misconduct claims lead to reprimand, suspension, or even disbar- attorneys profes- of who fail to act in a
ment
sionally responsible manner on behalf of generally
their clients. See Ind. Admission Discipline Rule 23. Joseph HOFGESANG, OF C. ESTATE Executor, Hardy, Ben B. my In for the addition concern Appellant-Plaintiff, defense, competent the accused to a I am equally mindful substantial human and expended during financial resources that are F. HANSFORD and Carol Sue James a criminal trial. the course of For defense Hansford, Appellees-Defendants. attorney “sleepwalk” through proceeding grave and afterward seek to reverse No. 22A01-9808-CV-293. consequences ineptitude unforgiv- of his is an Appeals of Indiana. Court client, court, able affront to his to the and to community solely responsible that is for Aug. providing “speedy public” the means of ultimately fair the due trials ensure jurisdictions, process many In of law. how-
ever, recognize public defenders are unmanageable
encumbered such case- diligent attorney
loads that even the most prepare
could not find the time an ade-
quate defense for each client. Whenever indispensable
such resources are stretched so thin, community
perilously legal must