Shack v. State

CourtSupreme Court of Indiana
Citation231 N.E.2d 36,11 Ind.Dec. 713,249 Ind. 67
Docket NumberNo. 30467,30467
PartiesVarderman SHACK, Appellant, v. STATE of Indiana, Appellee.
Decision Date14 November 1967

Charles G. Castor, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., Indianapolis, for appellee.

LEWIS, Judge.

The appellant was indicted by the Grand Jury of Marion County, Indiana, for the offense of Murder in the First Degree. Shack entered a plea of not guilty and after trial by jury a verdict was rendered finding him guilty of Murder in the First Degree and he was sentenced to suffer death.

After the indictment was returned by the Grand Jury, the Court appointed an attorney, one James Nedeff, to represent Varderman Shack. After the verdict was rendered and judgment entered, Mr. Nedeff prepared and filed a motion for new trial. The motion for new trial was overruled.

Shack then prayed an appeal to the Supreme Court of Indiana as a pauper and the Trial Court granted the request for appeal as a pauper and appointed Charles G. Castor, an attorney, to represent Shack in his appeal to the Supreme Court. After the appointment of Mr. Castor as appellate attorney for Mr. Shack, and after the transcript of the trial proceedings had been prepared, Mr. Castor filed a petition for permission to file a belated motion for new trial, which petition, omitting the formal parts, reads as follows:

'Comes now the defendant, Varderman Shack, and petitions the court for permission to file a belated motion for new trial pursuant to Rule 2--40 and 2--40(a)(2--40A) of the Supreme Court of Indiana, and in support thereof, shows the Court as follows:

1. The defendant was charged herein with the crime of first-degree murder.

2. The defendant was represented at his trial on June 3, 1963 by James Nedeff, Public Defender, and on the 5th day of June, 1963, the defendant was convicted by jury with a recommendation that the defendant suffer death.

3. On July 3, 1964, a motion for new trial was filed for the defendant by the Public Defender, James Nedeff.

4. Thereafter, defendant filed petition to appeal as a pauper, which the Court granted on August 27, 1963, and appointed Charles G. Castor, attorney, of Indianapolis, Indiana, to represent the defendant in his appeal.

5. Defendant's attorney, Charles G. Castor, had no knowledge of the proceedings in this cause prior to his appointment as attorney for the defendant.

6. Defendant, Varderman Shack, is entitled to a new trial because of the following:

(a) The defendant was not given a fair and impartial trial as guaranteed by the Constitution of the State of Indiana, Art, I, Sec. 13, inasmuch as his counsel was incompetent in his representation of the defendant for and during the trial of the defendant in this cause.

(b) The evidence was insufficient to support the finding of the jury.

(c) The verdict of the jury was contrary to law.

(d) The jury failed to give adequate time to its deliberation in this cause, deliberating only thirty minutes to find the defendant guilty on a capital offense and recommended the death penalty.

7. A copy of the proposed Motion for New Trial, the permission to file which is requested by this petition, is attached hereto, marked Exhibit '1', and made a part hereof by reference, which specifically sets forth the points alleged as to grounds for new trial.

8. The cause for new trial, namely, incompetency of counsel, was first discovered by the defendant on or about the 7th day of September, 1964, during a conference with his attorney at the Indiana State Penitentiary at Michigan City, Indiana.

9. The cause relied upon for a new trial in this petition is that the defendant was not afforded his Constitutional Rights to competent counsel to assist him at all stages of the proceedings hereinbefore and during the trial of his case as hereinbefore alleged, and more specifically as follows:

(a) The defendant was charged with the crime of first-degree murder, a crime which carries a penalty of the suffering of death, the penalty which the defendant received. Being a poor person, the defendant was represented by the Public Defender, James Nedeff, attorney, who had never represented a defendant in a capital case, and whose sole jury experience consisted of one jury trial prior to the trial of the defendant.

(b) That because of the gravity of the offense, the defendant was entitled to the appointment of counsel with experience in trial of jury cases, and also an attorney experienced in trial of murder cases.

(c) That defendant is an unskilled and uneducated person regarding the practice of law, having attended only to the fourth grade of schooling, and can read and write only to a limited extent, and prior to the trial of this cause, had had no experience with attorneys, and was unacquainted with the various skills which attorneys possess.

(d) At the time of the alleged offense, defendant received an injury to his throat, and as a result thereof, was unable to talk until approximately two weeks before his trial. That his court-appointed attorney, James Nedeff, well knew this, but failed to file a motion for continuance of the trial to enable him to adequately confer with his attorney to prepare for the trial of this cause.

(e) That James Nedeff, his attorney, did not adequately explain to him the penalties which he could receive by virtue of the offense charged, and failed to adequately advise the defendant as to the penalties contained in the charge of first-degree murder as contrasted with the penalties contained in second-degree murder.

(f) That the (sic) the trial of the defendant, the defendant there requested his attorney to ask questions of state's witnesses which his attorney, James Nedeff, failed to do.

(g) That the defendant furnished his attorney, James Nedeff, with names of witnesses to testify favorably in his behalf, which witnesses his attorney failed to subpoena at his trial.

(h) That the defendant furnished his attorney, James Nedeff, with names of witnesses to testify as to his character, which witnesses his attorney failed to subpoena, and the defendant was, for all practical purposes, the only witness in his behalf.

(i) That his attorney, James Nedeff, did not spend sufficient time in preparing for the trial of this cause.

(j) That his attorney, James Nedeff, did not tender any instructions to the Court for reading to the jury.

(k) That there elapsed only a lunch hour from the conclusion on the evidence in this case until argument and instructions, and that attorney, James Nedeff, failed to request additional time to prepare and submit instructions to the Court for reading to the jury.

(l) That the jury in this case deliberated approximately thirty minutes on a capital offense case recommending the death penalty for the defendant, which, in itself, shows a lack of preparation of a defense for the defendant by his attorney, James Nedeff.

10. The incompetency of James Nedeff, the attorney for the defendant at his trial, despite the exercise of due diligence, could not be discovered until on or about the 7th day of September, 1964, as the defendant had never conferred with other attorneys regarding his case and was ignorant as to the abilities and responsibilities of attorneys in the trial of cases and representation of clients.

11. That the motion for new trial previously filed in this cause was filed by James Nedeff, Public Defender, as attorney for the defendant, and said attorney could not be expected to include as a ground for new trial, his own incompetency.

WHEREFORE, Varderman Shack, defendant, prays that the Court enter an order allowing him to file his belated motion for new trial, and for all other relief proper in the premises.'

The substance of the motion for new trial itself is contained in the petition, supra.

In order to have a complete understanding of the petition for permission to file a belated motion, the affidavits of Varderman Shack and James Nedeff, which were attached to such motion for new trial, are incorporated herein.

The affidavit of Varderman Shack, omitting the formal parts, reads as follows:

'Varderman Shack, being duly sworn upon his oath, deposes and says:

1. That he is the defendant herein.

2. That he was not afforded his Constitutional Rights as guaranteed by Article I, Section 13 of the Constitution of the State of Indiana, as he was not adequately represented by counsel prior to and during his trial, and that counsel appointed to represent him by the Court, James Nedeff, attorney, was incompetent in the following manner:

(a) The defendant was charged with the crime of first-degree murder, a crime which carries a penalty of the suffering of death, the penalty which the defendant received. Being a poor person, the defendant was represented by the Public Defender, James Nedeff, attorney, who had never represented a defendant in a capital case, and whose sole jury experience consisted of one jury trial prior to the trial of the defendant.

(b) That because of the gravity of the offense, the defendant was entitled to the appointment of counsel with experience in trial of jury cases, and also an attorney experienced in trial of murder cases.

(c) That defendant is an unskilled and uneducated person regarding the practice of law, having attended only to the fourth grade of schooling, and can read and write only to a limited extent, and prior to the trial of this cause, had had no experience with attorneys, and was unacquainted with the various skills which attorneys possess.

(d) At the time of the alleged offense, defendant received an injury to his throat, and as a result thereof, was unable to talk until approximately two weeks before his trial. That his court-appointed attorney, James Nedeff, well knew this, but failed to file a motion for continuance of the trial to enable him to adequately confer with his attorney to prepare for the trial of this cause.

(e) That James Nedeff, his attorney, did not adequately explain to him...

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17 cases
  • Shack v. State
    • United States
    • Indiana Supreme Court
    • October 25, 1972
    ...* Appellant was arrested in 1962 and convicted in 1963, however, in 1967 the conviction was reversed. See Shack v. State (1967), 249 Ind. 60, 206 N.E.2d 614, 249 Ind. 67, 231 N.E.2d 36. Appellant's second trial in 1969 resulted in a hung jury. Appellant was retried in 1970 which resulted in......
  • Tibbs v. State, 472A196
    • United States
    • Indiana Appellate Court
    • November 15, 1973
    ...the record on appeal. State v. Irvin (1973), Ind., 291 N.E.2d 70; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919; Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36. No such evidence is apparent in this record. Counsel investigated the facts by conferring with the Prosecutor's staff, o......
  • State v. Cutcher
    • United States
    • Ohio Court of Appeals
    • February 13, 1969
    ...Alvis (1956), 103 Ohio App. 324, 141 N.E.2d 489; People v. Ibarra (1963), 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487; Shack v. State (1967), 231 N.E.2d 36 (S.Ct.Ind.). Also, see cases cited in 74 A.L.R.2d 1390 (1957) and in 59 Northwestern University Law Review 289 (1964). As stated by p......
  • Smith v. State, 1--276A12
    • United States
    • Indiana Appellate Court
    • August 31, 1976
    ...spend in preparation and what is adequate preparation, and instead concluded that each case stands on its own facts. Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. This court, in Daniels v. State (1974), Ind.App., 312 N.E.2d 890, 893......
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