Brown v. State, 30555

• Docket Nº: No. 30555
• Citation: 248 Ind. 11, 221 N.E.2d 676
• Case Date: December 06, 1966
• Court: Supreme Court of Indiana

Page 676

221 N.E.2d 676 248 Ind. 11 George Robert BROWN, Appellant,
v.
STATE of Indiana, Appellee. No. 30555. Supreme Court of Indiana. Dec. 6, 1966.

Page 677

Max Cohen, Gary, for appellant.

John J. Dillon, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.

MYERS, Judge.

This is an appeal from the denial of a petition for a writ of error coram nobis in the Lake Criminal Court. These proceedings were taken pursuant to Rule 2--40 of the Indiana Supreme Court as amended in 1952 and prior to the amendment of 1963 which abolished writs of error coram [248 Ind. 12] nobis. The rule in 1960, when these proceedings started, read in part as follows:

'An appeal may be taken to the Supreme Court from a judgment granting or denying a petition for a writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to a vacation of the judgment will be considered upon an assignment of error that the finding is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the clerk of the Supreme Court within ninety (90) days after the date of the decision. The provisions of the rules of this court applicable to appeals from final judgments shall govern as to the form and time of filing briefs.'

Page 678

Appellant had been convicted of murder in the first degree on December 13, 1957, and sentenced to death in the electric chair. A direct appeal to the Supreme Court of Indiana was taken, and the judgment of conviction was affirmed. Brown v. State (1959), 239 Ind. 184, 154 N.E.2d 720. A petition for a writ of certiorari was filed with the United States Supreme Court and denied without prejudice to appellant's right to file a petition for a writ of habeas corpus. Brown v. Indiana (1960), 361 U.S. 936, 80 S.Ct. 375, 4 L.Ed.2d 360. Such a petition was filed in the United States District Court, Northern District of Indiana, South Bend Division, but was dismissed in 1960 on the ground that appellant had failed to exhaust his state remedies. Thereafter, on May 10, 1960, appellant filed his petition for writ of error coram nobis in the Lake Criminal Court, being represented by the Public Defender of the State of Indiana. A hearing was held on the matters presented in the petition, witnesses were heard and evidence was introduced. The court thereafter denied the petition and judgment was entered accordingly. The Public Defender refused to appeal this decision on the ground that, after careful review, he could find no error or errors which had any merit to assign on appeal. Appellant then filed a petition in mandate in the Supreme Court of Indiana against [248 Ind. 13] the Lake Criminal Court and the Judge thereof, seeking to command the appointment of counsel for appellant and to furnish him with a transcript of the proceedings for writ of error coram nobis so as to prosecute an appeal. This followed a denial by the Lake Criminal Court of a similar motion filed with that court previously. The Supreme Court took this matter under consideration and ruled that the Public Defender was under no duty to obtain a transcript when he could find no merit for grounds to be assigned on appeal. Brown v. State (1961), 241 Ind. 298, 171 N.E.2d 825.

Appellant filed a petition for writ of certiorari in the United States Supreme Court which was denied without prejudice. Brown v. Indiana (1961), 366 U.S. 954, 81 S.Ct. 1906, 6 L.Ed.2d 1246.

Thereafter, a petition for writ of habeas corpus was filed in the United States District Court for the Northern District of Indiana, South Bend Division. This writ was granted, and a full appellate review was ordered of the denial of his coram nobis petition. The United States Court of Appeals affirmed the District Court. United States ex rel. Brown v. Lane (1962), 7 Cir., 302 F.2d 537. The United States Supreme Court vacated the judgment of the Court of Appeals and of the District Court, remanding the case to the District Court and ordering that appellant be discharged from custody unless, within a reasonable time, the State of Indiana provided him an appeal on the merits to the Supreme Court of Indiana from the denial of the writ of error coram nobis. Lane v. Brown (1963), 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892.

Pursuant to the mandate of the United States Supreme Court, the Indiana Supreme Court ordered the Lake Criminal Court to provide appellant with a transcript of the proceedings in connection with the petition for writ of error coram nobis and to appoint counsel to conduct the appeal from the denial of the writ. Appellant, having obtained counsel, filed a petition for rehearing on the denial of the writ. The State [248 Ind. 14] of Indiana filed a motion to strike the petition for rehearing. The Lake Criminal Court sustained the motion to strike and denied the petition for rehearing. This appeal followed. It is strictly based upon the right of appeal granted by Rule 2--40 as it was set forth in 1960.

The assignment of errors claims that the decision of the court denying the petition for writ of error coram nobis is contrary to law; that the court erred in sustaining the motion to strike the petition for rehearing; that the court erred in denying the petition for rehearing, thereby depriving appellant of due process of law in violation of the Fourteenth Amendment to the United States Constitution.

Page 679

Appellant alleges that the decision of the court in denying the writ of error coram nobis is contrary to law. The petition for the writ filed by appellant pro se asserts three grounds as the basis for granting a new trial. The first is that the corpus delicti of the crime was never established. This is a matter which can be determined by the record in the original trial. Coram nobis may not be utilized to correct an alleged error which appears in the record. Riggs v. State (1956), 235 Ind. 499, 135 N.E.2d 247; Obie v. State (1952), 231 Ind. 142, 106 N.E.2d 452; Jordan v. State (1954), 233 Ind. 626, 121 N.E.2d 643.

This question must...