Baker v. State, 773S135

• Decision Date: 02 December 1974
• Docket Number: No. 773S135,773S135
• Citation: 262 Ind. 543,319 N.E.2d 344
• Parties: Leroy James BAKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 344

319 N.E.2d 344

262 Ind. 543

Leroy James BAKER, Appellant, v. STATE of Indiana, Appellee.

No. 773S135.

Supreme Court of Indiana.

Dec. 2, 1974.

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., John H. Myers, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Judge.

Defendant's petition for post-conviction relief from a 1961 Second Degree Murder conviction was denied, and he appeals. Reviewing a denial of post-conviction relief, we should not weigh the evidence nor judge the credibility of witnesses. If the evidence is without conflict and leads to but one reasonable conclusion and the trier of fact--the trial judge in a post-conviction hearing--has reached a contrary conclusion, then, and only then, will the decision of the trial judge be disturbed. Hoskins v. State, (1973) Ind., 302 N.E.2d 499 and cases cited therein.

The first issue which defendant raised at his post-conviction hearing was that the representation of his attorney, both at trial and on appeal, was incompetent. While each case of alleged incompetency must turn upon its own particular facts, Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919; nevertheless, trial counsel is presumed to be competent. Haddock v. State, (1973) Ind., 298 N.E.2d 418; Payne v. State, (1973) Ind., 301 N,.e.2d 514; Hoskins v. State, supra. This presumption can be overcome only if it can be established that what the attorney did or failed to do made the proceedings a mockery and shocking to the conscience of the court. Payne v. State, supra.

The probative evidence introduced by defendant to prove his counsel's incompetence at trial focused upon counsel's failure to object to an alleged conversation between a juror and the prosecutor. Opposing this evidence is the prosecutor's denial of the occurrence of the conversation. The hearing officer was thus presented with conflicting testimony as to the existence of any factual basis for a claim of incompetency. The decision of the hearing officer in a post-conviction relief proceeding on a question of fact will be set aside only if it is contrary to law. Since appellant has failed to demonstrate that the hearing officer's conclusion is contrary to law, we do not reach the merits of appellant's claim.

In regard to the handling of the appeal, Defendant's claim of incompetency of counsel is based on the fact that in the motion for new trial twenty-one (21) errors were alleged, but on appeal only four (4) of these were supported by substantial argument. Therefore, under its then Rule 2--17(e) and (f) this Court deemed the other seventeen (17) alleged errors waived. Baker v. State, (1963) 245 Ind. 129, 195 N.E.2d 91. However, Defendant alleges only that he was prejudiced by the failure of his attorney to properly present an argument concerning the admissibility of a confession. Since, as we point out below, there is no merit in this argument, we conclude that any inadequacy of representation did not prejudice Defendant.

Defendant's second issue is that the signed confession which was used at trial against him was a product of coercion. The State in its Brief in support of the hearing judge's determination that the confession was voluntary referred us to numerous parts of the trial transcript which purportedly contradicted the allegations of coercive treatment made by the Defendant at his post-conviction hearing. However the State neglected to make the trial ranscript a part of the record for this appeal. Nevertheless, that transcript was made a part of the post-conviction hearing by reference, and our independent examination of that transcript indicates that it was not unreasonable for the hearing judge to conclude that the confession was voluntary.

Defendant's final issue is that since his post-conviction hearing assertion that he and the trial judge were related within the sixth degree of consanguinity was unrefuted the...