Cade v. State, No. 575S132

Docket NºNo. 575S132
Citation348 N.E.2d 394, 264 Ind. 569
Case DateJune 04, 1976
CourtSupreme Court of Indiana

Page 394

348 N.E.2d 394
264 Ind. 569
Larry CADE, Appellant,
v.
STATE of Indiana, Appellee.
No. 575S132.
Supreme Court of Indiana.
June 4, 1976.

[264 Ind. 570]

Page 396

Douglas D. Church, Church, Roberts and Beerbower, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Larry Cade, was convicted on April 10, 1974, of first degree murder, homicide in the perpetration of a burglary. Sentenced to life imprisonment on May 6, 1974, the Appellant filed his Motion to Correct Errors on July 3, 1974. The Honorable V. Sue Shields, the trial judge, disqualified herself from further proceedings regarding the Appellant on July 22, 1974. Upon motion by the Appellant, jurisdiction was reassumed by the trial court on September 16, 1974. After a hearing and continuances requested by the Appellant, the Appellant's Motion to Correct Errors was denied on March 3, 1975. This appeal has been [264 Ind. 571] kept viable since that date by appropriate extensions of time requested by the Appellant and granted by this court.

The evidence at trial revealed that on the evening of January 5, 1973, the Appellant met with one Enos Adams and one Walter Banks on North College Avenue in Indianapolis, Indiana. The three of them walked, looking for houses to burglarize and found a darkened house on North Delaware Avenue. After knocking on the doors and looking in the windows of the home, the three men proceeded to the rear. The Appellant broke down the rear door of the house after unsuccessful attempts to do so by his companions.

The Appellant remained near the rear door of the house to act as a lookout and to remove from the home items brought to him by Adams and Banks. Adams had left Banks upstairs when he heard someone approaching the front of the house. Adams shouted a warning to Banks and ran to the back of the house. He ran into the Appellant and the two of them fled through the back yard.

The owner of the residence, George Hosmer, was entering his front door as he spotted Adams running down a hall. He stepped back from the door as he heard something outside. His wife, Lucille, went into the dining room and dialed the police emergency number. Four shots were heard. One struck Hosmer in a rib. Others struck and killed his wife.

Banks ran after and caught up with Adams and the Appellant. Banks asked Adams to keep his gun for him and Adams took the gun and went home. Later, Adams gave the gun to Banks' brother. The Appellant and Banks went to the homes of their girlfriends.

Police arrived at the scene of the crime and found items believed to be objects of the burglary at the rear of the residence. Latent fingerprints identified as those of the Appellant, Adams, and Banks were found in the home. Two spent bullets were

Page 397

found in the house. Another was recovered from the body of Mrs. Hosmer. The Appellant was arrested at his home in the early morning hours of January 7, 1973.

[264 Ind. 572] I.

The first allegation of error raised by the Appellant is that the evidence was insufficient to support the verdict of the jury. This is premised upon three contentions:

'1. That there was no evidence from which knowledge could be imputed to the Defendant of the instrumentality which ultimately caused the homicide; and,

2. That the evidence was uncontradicted that the Defendant had initiated an effort to abandon the scene of the crime; and

3. That there was no evidence that the Defendant encouraged the commission of the homicide.'

The evidence is far from uncontradicted on the question of whether the Appellant attempted to abandon the scene of the crime. Rather, the evidence shows that the Appellant was attempting to flee, not abandon, the scene of the crime. Beyond this, we need not look to the Appellant's knowledge or participastion in the actual shooting.

'A person may be responsible for murder if he either actually commits the offense or does some act which forms a part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof. Where a killing is murder under statutory provisions because it was committed in the commission of, or attempt to perpetrate, one of the crimes specified in the provisions, all participants in the crime committed or attempted are deemed equally guilty of the murder, regardless of which participant actually killed the deceased.'

15 I.L.E. Homicide § 18 at 304 (1959).

The evidence at trial established that the Appellant actively participated in an attempted burglary of the Hosmer home. He broke down the back door of the home. His fingerprints were found inside the house. He met with his confederates after the crime and aided in concealing the murder weapon.

'It is well-established that this court, in determining the sufficiency of evidence, does not judge the credibility of witnesses nor weigh evidence. We look at only the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. [264 Ind. 573] A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State, (1975) Ind., 332 N.E.2d 103; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Jackson v. State, (1971) 257 Ind. 477, 275 N.E.2d 538.'

Matthew v. State, (1975), Ind., 337 N.E.2d 821 at 822. The evidence in this case was sufficient to support the jury's verdict.

II.

Raised as the second contention of error is that the Appellant was denied the right to effective assistance of counsel. During the course of the proceedings against him, the Appellant was represented by three different attorneys. The Appellant does not suggest that any of these counsel were incompetent. As stated in the brief of the Appellant, the 'issue raised is instead whether or not someone as in the case of this Appellant, can receive effective assistance of counsel where three or more attorneys representing the accused at various and critical states of the proceedings operating on separate theories and varying degrees of zealousness can ultimately result in effective representation.'

We need not fully develop here the extent of a defendant's right to counsel. A defendant

Page 398

is, in short, entitled to consult with counsel in every stage of proceedings against him. Batchelor v. State, (1920) 189 Ind. 69, 125 N.E.2d 773. It requires that counsel have an adequate opportunity to prepare for a 'zealous and active' defense. Lloyd v. State, (1960) 241 Ind. 192, 170 N.E.2d 904. We do not believe that the Appellant has presented facts which show he was not afforded this right.

Indeed, the Appellant has presented this court with few facts upon which to base any resolution of this issue. It is pointed out that the Appellant's third attorney was not appointed until some two and one-half weeks prior to trial. It is also conceded that a motion for continuance was granted and that the trial commenced forty-five days after the appointment. No further motions for continuance were made. [264 Ind. 574] No objections regarding the assistance of counsel were made until the issue was raised in the Appellant's Motion to Correct Errors.

It is noted that the Appellant, as a pauper, had no choice in the appointment of his counsel. And it is pointed out that the Appellant's second attorney served for almost a year before being replaced because of a possible conflict of interest. The possible resulting problems in discovery, pretrial motions, and trial preparation are discussed. But this is all speculation. Nowhere is it asserted that there were, in fact, any problems in any of these areas.

We are asked to presume 'that a nineteen (19) year old black man, untrained in the...

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8 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 March 1979
    ...has abused [179 Ind.App. 482] its discretion or the record indicates that the verdict may have been coerced. Cade v. State (1976), Ind., 348 N.E.2d 394; Ayad v. State (1970), 254 Ind. 430, 261 N.E.2d Although the note in question appears in the record and there is an order book entry showin......
  • Stacks v. State, No. 3-1175A263
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 February 1978
    ...case, therefore, committed reversible error only if the denial of Stacks' motion was an abuse of discretion. Cade v. State (1976), Ind., 348 N.E.2d 394. Stacks relies upon cases holding that a trial court's denial of an uncontroverted, verified motion for change of venue from the judge, wit......
  • Clemons v. State, No. 1180S423
    • United States
    • Indiana Supreme Court of Indiana
    • 5 August 1981
    ...only for an abuse of discretion. The burden is on defendant to show a clear abuse of discretion by the trial court. Cade v. State, (1976) 264 Ind. 569, 348 N.E.2d The main basis upon which defendant relies is that the trial court's rejection of the plea bargain constituted prejudice and bia......
  • Banks v. State, No. 1074S204
    • United States
    • Indiana Supreme Court of Indiana
    • 15 July 1976
    ...was convicted of first degree murder on April 10, 1974. This court affirmed that conviction on June 4, 1976. Cade v. State, (1976) Ind., 348 N.E.2d 394. The evidence at trial revealed that on the evening of January 5, 1973, Mr. George Hosmer, age 79, and his wife Lucille, age 78, returned t......
  • Request a trial to view additional results
8 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 March 1979
    ...has abused [179 Ind.App. 482] its discretion or the record indicates that the verdict may have been coerced. Cade v. State (1976), Ind., 348 N.E.2d 394; Ayad v. State (1970), 254 Ind. 430, 261 N.E.2d Although the note in question appears in the record and there is an order book entry showin......
  • Stacks v. State, No. 3-1175A263
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 February 1978
    ...case, therefore, committed reversible error only if the denial of Stacks' motion was an abuse of discretion. Cade v. State (1976), Ind., 348 N.E.2d 394. Stacks relies upon cases holding that a trial court's denial of an uncontroverted, verified motion for change of venue from the judge, wit......
  • Clemons v. State, No. 1180S423
    • United States
    • Indiana Supreme Court of Indiana
    • 5 August 1981
    ...only for an abuse of discretion. The burden is on defendant to show a clear abuse of discretion by the trial court. Cade v. State, (1976) 264 Ind. 569, 348 N.E.2d The main basis upon which defendant relies is that the trial court's rejection of the plea bargain constituted prejudice and bia......
  • Banks v. State, No. 1074S204
    • United States
    • Indiana Supreme Court of Indiana
    • 15 July 1976
    ...was convicted of first degree murder on April 10, 1974. This court affirmed that conviction on June 4, 1976. Cade v. State, (1976) Ind., 348 N.E.2d 394. The evidence at trial revealed that on the evening of January 5, 1973, Mr. George Hosmer, age 79, and his wife Lucille, age 78, returned t......
  • Request a trial to view additional results

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