Aubrey v. State, No. 883S286

• Docket Nº: No. 883S286
• Citation: 478 N.E.2d 70
• Case Date: May 29, 1985
• Court: Supreme Court of Indiana

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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.

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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;

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(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...