Baynard v. State, 2--1073A219
| Docket Nº | No. 2--1073A219 |
| Citation | 317 N.E.2d 897, 162 Ind.App. 86 |
| Case Date | October 31, 1974 |
| Court | Court of Appeals of Indiana |
Page 897
v.
STATE of Indiana, Appellee (Respondent Below).
[162 Ind.App. 87] Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
BUCHANAN, Judge.
Petitioner-Appellant Walter James Baynard, Jr. (Baynard) appeals from the trial
Page 898
court's denial of post-conviction relief from a jury verdict finding him guilty of Robbery, claiming ineffective trial counsel.We affirm.
Following his conviction of Robbery by jury, Baynard perfected a direct appeal from the trial court culminating in the Supreme Court decision of Baynard v. State (1972), Ind., 286 N.E.2d 844. In that appeal Baynard challenged [162 Ind.App. 88] hs conviction upon the basis of insufficient evidence and misconduct of counsel (the prosecutor). Finding for the State on both issues, the Court affirmed his conviction.
The facts most favorable to the State are as follows:
On July 3, 1970, at about 9:00 A.M., Baynard and an accomplice, James Kittrell, entered an A & P grocery store. Baynard, armed with a revolver, demanded all the money in the store from its manager, David Law. Kittrell collected the funds from the cash register and the cash drawer in the office, and the pair fled.
Law later identified Baynard as the robber by viewing photographs at the police station selecting his photograph as being the robber.
Baynard was then arrested and charged by affidavit on September 10, 1970, with Robbery of One Hundred Ninety-two Dollars ($192.00).
Law also identified Baynard at a subsequent lineup and positively identified him at trial.
Baynard was found guilty as charged and sentenced by the trial court to imprisonment for a period of not less than ten (10) nor more than twenty (20) years.
In September, 1972, Baynard filed his Petition for Post-Conviction Relief pursuant to P.C. 1(a) claiming insufficient evidence, denial of counsel at preliminary hearing, and incompetency of trial counsel. Hearing was held on February 2, 1973.
He testified that on the morning of July 3, 1970, the day of the robbery for which he was charged, he was at home with his brother, Emerson Baynard. Later, at about the time he was allegedly committing the robbery (9:00 A.M.), Baynard and his brother walked to the house of Ada Carr, to aid in the preparation of a picnic for the following day, where the three remained until noon of July 3rd.
[162 Ind.App. 89] Baynard further testified that he communicated the above facts to his court-appointed attorney together with the names and addresses of these alibi witnesses.
Baynard's testimony was corroborated by Miss Carr and Emerson Baynard, both substantiating the fact that Baynard was with them at all times during July 3, 1970, until noon. Neither had been contacted by Baynard's attorney concerning the possibility of serving as alibi witnesses.
The State's only witness at the hearing, Baynard's court-appointed counsel, testified that he had not pursued an alibi defense during the trial because Baynard had never indicated to him the possibility of this defense, or the existence of any alibi witnesses. Counsel did indicate, however, that Baynard may have given him one of the names for the purpose of securing money for a bond.
The State filed an Answer alleging waiver of all errors alleged in Baynard's Petition, except as to incompetency of counsel.
Upon the foregoing evidence, the trial court found that Baynard had failed to prove by a preponderance of the evidence that he had notified his counsel of the alibi defense. The trial court concluded that the defense counsel competently and adequately represented Baynard prior to and during trial, and that all other issues raised by Baynard in his Petition for Post-Conviction
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Relief had been waived or previously adjudicated by the Supreme Court in Baynard's direct appeal.Pursuant to P.C. 7, Indiana Rules of Procedure, Baynard appeals the trial court's affirmance of his conviction.
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...542; Lockhart v. State, (1971) 257 Ind. 349, 274 N.E.2d 523; Henry v. State, (1976) Ind.App., 353 N.E.2d 482; Baynard v. State, (1974) 162 Ind.App. 86, 317 N.E.2d 897; Harrison v. State, (1973) 155 Ind.App. 231, 292 N.E.2d The rule provides that the proceeding under Ind.R.P.C. 1 is commence......
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