242 N.E.2d 919 (Ind. 1969), 1267S142, Thomas v. State

Docket Nº:1267S142.
Citation:242 N.E.2d 919, 251 Ind. 546
Party Name:John F. THOMAS, Appellant, v. STATE of Indiana, Appellee.
Case Date:January 08, 1969
Court:Supreme Court of Indiana

Page 919

242 N.E.2d 919 (Ind. 1969)

251 Ind. 546

John F. THOMAS, Appellant,


STATE of Indiana, Appellee.

No. 1267S142.

Supreme Court of Indiana.

January 8, 1969

Page 920

[251 Ind. 547] Leonard V. Campanale, Mishawaka, for appellant.

John J. Dillon, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

The appellant was charged by affidavit with the offenses of robbery (Ind.Ann.Stat. § 10--4101 (1956 Repl.)) and kidnapping (Ind.Ann.Stat. § 10--2901 (1956 Repl.)). Count I of the affidavit charges:

'That on or about the 17th day of August, 1966, at and in the County of St. Joseph, State of Indiana, JOHN FREDERICK THOMAS took from the person of Charles D. Green an article of value, to-wit: Sixty Dollars and 00/100 ($60.00) in good and lawful currency of the United States of America, by putting Charles D. Green in fear * * *'

Count II of the affidavit charges:

'That on or about the 17th day of August, 1966, at and in the County of St. Joseph, State of Indiana, JOHN FREDERICK THOMAS did forcibly and fraudulently [251 Ind. 548] carry off Charles D. Green from a place within this state, to-wit: at or near the Band City Oil Company station, located at 1300 East McKinley Highway, in the City of Mishawaka, County and State aforesaid, with the felonious intention then and there and thereby having said Charles D. Green carried way from said place, * * *'

On August 18, 1966, pursuant to this affidavit, the appellant was arrested by the Sheriff and brought before the St. Joseph Superior Court for arraignment. There he was informed of his rights, and he asked the court to appoint an attorney to represent him. The court appointed the public defender to represent the appellant, and the arraignment was continued until August 29th. On August 29, the public defender and his associate appeared with the appellant, waived further arraignment, and entered a plea of not guilty to both counts of the affidavit. On November 11, the associate public defender resigned from his employment, and all the cases on which he was then working were turned over to the one remaining public defender. On November 18, a trial was held, and the appellant was represented in court only by this public defender. Having been so advised by his counsel, the appellant waived his right to a jury trial. The state presented its case, and the public defender rested the defense without the submission of any evidence on behalf of the appellant. The appellant was convicted on both counts and sentenced to the Indiana State Prison for the rest of his natural life.

The appellant pro se filed a motion for a new trial claiming that he had been inadequately represented by the public defender. The relevant part of this motion reads as follows:

'John Thomas, defendant in the above entitled cause, respectfully petitions the Court for a new trial of said cause for the following reasons: * * *

  1. Inadequate representation by defense counsel in that counsel failed to

    Page 921

    properly investigate the case and properly prepare defendant's defense for trial. Counsel spoke to defendant only three (3) times prior to trial. The first time was on November 10, 1966, when counsel talked to [251 Ind. 549] defendant for about ten minutes and asked defendant to plead guilty to robbery. On November 15, 1966, counsel conversed with defendant for a period of from twenty to twenty-five minutes, and talked about getting a bench trial. The third time counsel spoke to defendant on or about November 16 or 17, 1966, for a duration of about twenty minutes.

  2. Misconduct on the part of defense counsel to the prejudice of defendant in that said counsel failed to interview or subpoena the following witnesses:

    (a) William D. Jacobs, Michigan City, Indiana, who would have testified that defendant had nothing to do with the crimes for which he was convicted.

    (b) Linda DeMeulenaere, South Bend, Indiana, who would have testified that defendant was talking with her on the telephone at the time when crimes occurred for which defendant was convicted.'

    The appellant then filed a pauper petition for the appointment of an attorney and for the expenses of this appeal; the petition was granted, and the court appointed Mr. Leonard V. Campanale to represent the appellant. On September 19, 1967, both the appellant and the state introduced new testimony at a hearing regarding the appellant's motion for a new trial. On October 5, the motion for a new trial was overruled; this is the only error assigned by the appellant in this appeal.

    Article I, § 13 of the Indiana Constitution requires that pauper defendants in criminal proceedings be provided legal counsel at public expense. Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427.

    'The constitutional requirement is satisfied when the defendant has had the benefit of the advice and guidance of a reputable and competent attorney. If at any stage of the proceedings the appointed counsel is unable to continue, it is the duty of the trial court to appoint other reputable and competent counsel so that the defendant shall have the benefit of counsel at all stages * * *' State ex rel. White Hilgemann (1941), 218 Ind. 572, 578, 34 N.E.2d 129, 131.

    [251 Ind. 550] This court has consistently held that the counsel so provided must be competent and be allowed adequate time in which to prepare a defense. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848.

    'And mere perfunctory action by an attorney assuming to represent one accused of crime, which falls short of presenting the evidence favorable to him and invoking the rules of law intended to prevent conviction for an offense of which the accused is innocent or the imposition of a penalty more severe than is deserved, should not be tolerated.' Castro v. State (1925), 196 Ind. 385, 391, 147 N.E. 321, 323.

    Inasmuch as it would be impossible for this court to fix guidelines as to what would be required to constitute adequate representation, each case must be allowed to stand on its own facts. Shack v. State (1967), Ind., 231 N.E.2d 36. In order then to determine whether trial counsel's defense of the case met the constitutional standards, it is necessary to review the evidence adduced at the trial and at the hearing on the motion for a new trial.

    At the trial, the subject of the robbery testified that the appellant was a passenger in the car driven by one William Dale Jacobs when the robbery and kidnapping took place and that the appellant had held a shotgun on him during that time. The witness admitted that the only time he had a chance to see the men inside the automobile was when he first came out of the building and was walking around the front

    Page 922

    of the car to the left side to talk to the driver.

    'Q Did you go to the right side of the automobile?

    A No, I went to the left side of the automobile.

    Q You went to the left side of the automobile. As you went to the left side of the automobile were the headlights of the car on or off?

    A Off.

    Q They were off. In what direction were you looking as you came around the front of the car?

    [251 Ind. 551] A Looking inside to see who the customers were, to see if I possibly knew them from some place.

    Q Do you always do that: look in the front seat of the car?

    A I always do.

    Q When anyone comes in?

    A I always do. I presume I always will. I don't know.

    Q How long did you look at the man who was a passenger in the car?

    A Until he passed out of sight. I mean until I was close enough to the car where I could no longer see the man sitting on the right side.

    Q How many feet were you from the passenger side of the car would you say?

    A Oh, ten.

    Q Would you describe the description that you gave to the police of the man who was the passenger in the car?

    A Rather tall, dark wavey hair, and I believe I said he was wearing a T-shirt, I am not sure.

    Q What was he wearing?

    A A...

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