Aubrey v. State

• Decision Date: 29 May 1985
• Docket Number: No. 883S286,883S286
• Citation: 478 N.E.2d 70
• Parties: Thomas AUBREY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 70

478 N.E.2d 70

Thomas AUBREY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 883S286.

Supreme Court of Indiana.

May 29, 1985.

Robert W. Hammerle, Joseph P. Maguire, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) was convicted of first degree murder and was sentenced to life imprisonment. His conviction was affirmed by this Court in Aubrey v. State (1974), 261 Ind. 531, 307 N.E.2d 67. Petitioner subsequently sought post-conviction relief; however, following hearings on June 30, 1982, August 4, 1982, and March 1, 1983, his petition was denied. His appeal from the denial of post-conviction relief presents two issues for our review, as follows:

(1) Whether he was denied his Sixth Amendment right to the effective assistance of counsel (2) Whether he was denied due process of law because the Prosecutor failed to disclose promises made by him to the State's sole eyewitness.

Our review is governed by the following standard:

"Petitioner ha[s] the burden of proof and stands in the shoes of one appealing from a negative judgment. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law." (citations omitted).

Neville v. State (1982), Ind., 439 N.E.2d 1358, 1360.

ISSUE I

First, Petitioner contends that his representation was inadequate because of a conflict of interest on the part of his trial attorney, Mr. Erbecker, who was the former husband of the State's first witness, the mother of the victim of the crime. Petitioner contends that because of his attorney's relationship with this witness, he did not effectively cross-examine her.

Petitioner refers us to numerous cases in which courts have held that defendants were denied the effective assistance of counsel because their attorneys had a conflict of interest, inasmuch as they represented codefendants or represented both the defendant and a prosecution witness. See, e.g., Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333; Ross v. Heyne (7th Cir.1980), 638 F.2d 979; Castillo v. Estelle (5th Cir.1974), 504 F.2d 1243. In order to show a Sixth Amendment violation it is necessary that a defendant, who made no objection at trial, show that his counsel " 'actively represented conflicting interests' and establish that this adversely affected his lawyer's performance." Smith v. State (1984), Ind., 465 N.E.2d 1105, 1119, quoting Cuyler v. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 347.

The situation in the case at bar is readily distinguishable from those cases cited by the Petitioner. Here, there is nothing which suggests that defense counsel "represented" his former wife in any way. Moreover, her sole function as a prosecution witness was to identify State's Exhibit No. 1, a photograph, as her son, the decedent. She did not in any way implicate the Petitioner as the perpetrator of the crime. When defense counsel attempted to cross-examine the witness regarding her son's police record and involvement in "holdups," the State's objection, grounded upon such line of questioning being beyond the scope of direct examination, was sustained. Hence, counsel's cross-examination of the witness was limited, not because of his relationship with the witness but because of the scope of the direct examination.

We agree with the conclusion of the post-conviction court that Petitioner failed to establish that a conflict of interest adversely affected his lawyer's performance.

Petitioner further contends that he was denied the effective assistance of counsel in that his attorney "presented only a superficial case regarding [his] temporary insanity at the time of the crime." Specifically, he claims that his attorney failed to obtain medical records from Norman Beatty Hospital which were favorable to his defense and failed to subpoena witnesses to testify regarding his mental state at the time of the crime.

Following Petitioner's arrest in September, 1970, he filed a "Verified Suggestion of Incompetency to Stand Trial." The trial court then appointed two psychiatrists to examine him, and, as a consequence of the examinations and reports, the trial court found that he was not then competent to stand trial and committed him to the Department of Mental Health. In 1972, the trial court received a report from the staff of Norman Beatty Hospital which indicated that the Petitioner was then competent to stand trial. Prior to the trial, two psychiatrists again examined the Petitioner, and the trial court determined that he was competent to stand trial.

At trial, Petitioner presented two defenses, self-defense and insanity. The only witness called by the defense relevant to the insanity defense was Petitioner's sister who testified that her brother had been at Norman Beatty Hospital for psychiatric treatment and that two and one-half years earlier, she had attempted to have him institutionalized at a hospital in Lexington, Kentucky. Following the presentation of both the State's and Defendant's cases, the two court-appointed psychiatrists testified that, in their opinions, Petitioner was sane at the time of the crime. Defense counsel vigorously cross-examined both of these doctors.

At the hearing on the petition for post-conviction relief, Petitioner called Dr. Gaines, a clinical psychologist who had worked at Norman Beatty Hospital from 1967 to 1975 and who had examined the Petitioner in 1971. Gaines' testimony and the records which were introduced through him indicated that at the time the Petitioner was at Norman Beatty Hospital, he was mentally ill. Also testifying at the post-conviction hearing were Petitioner's two sisters who stated that Petitioner, at the time of the crime, had been involved with drugs and had undergone some personality changes. They further testified that when they had visited him at Beatty Hospital, he was mentally unstable. One of the sisters also testified that a family doctor, Dr. Szynal, could have testified at trial about the Petitioner's mental state at the time of the crime, but that defense counsel never called him as a witness. Finally, she testified that Petitioner had received Social Security disability payments from 1972 to 1982 because of his mental illness.

In determining whether a defendant has been denied the effective assistance of counsel, the reviewing court must determine whether, in light of all the circumstances, the acts or omissions of which a defendant complaints are outside "the wide range of professionally competent assistance." Strickland v. Washington (1984), --- U.S. ----, ----, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695; Lawrence v. State (1984), Ind., 464 N.E.2d 1291, 1294. A strong presumption exists that counsel rendered adequate legal assistance. Id. Even...