Crisp v. State

• Decision Date: 11 September 1979
• Docket Number: No. 1178S265,1178S265
• Citation: 394 N.E.2d 115,271 Ind. 534
• Parties: Michael CRISP, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 115

394 N.E.2d 115

271 Ind. 534

Michael CRISP, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1178S265.

Supreme Court of Indiana.

Sept. 11, 1979.

J. Richard Kiefer, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Michael Crisp, was found guilty by a jury of murder in the first degree, Ind.Code § 35-13-4-1(a) (Burns 1975) and sentenced to life imprisonment. He now appeals raising the following issues:

1. Whether the trial court erred in applying the "farce and mockery" test to determine defendant's trial counsel's effectiveness and competence;

2. Whether the trial court erred in finding that defendant was not denied the effective assistance of counsel under said "farce and mockery" standard; and

3. Whether defendant's conviction is supported by sufficient evidence.

The evidence at trial most favorable to the state was as follows.

Defendant and Patty Elder dated each other for approximately two and one-half years, during which period they lived together for nearly one year. The couple had difficulty getting along and defendant moved out on January 7, 1976, after which they dated sporadically. During this time defendant twice broke into Ms. Elder's house, twice threatened her, struck her once and cut her phone lines on April 8, 1976.

On April 11, 1976, Patty Elder returned to her home at 11:00 or 11:30 a. m. She saw a knife on the floor which knife she had stuck in the back door so she could tell if someone had opened that door. She left the house and got her neighbor to return with her to retrieve her keys. She then drove to the residence of John Joslin and obtained the assistance of John Joslin, Timothy Brackman and Barbara Joslin. The four returned to Elder's residence. Brackman entered the back door and went down the hallway toward the bedrooms, past the bathroom in which defendant was hiding. Defendant then moved to a closet. Patty, Barbara and John entered the front door and went into the kitchen. John Joslin had a shotgun. They heard a noise and saw defendant holding a revolver. Defendant shot Joslin and the evidence indicates that both barrels of Joslin's shotgun discharged. John Joslin was fatally injured in the shooting.

Timothy Brackman returned to the kitchen and wrestled with defendant. Defendant stabbed Brackman during the struggle and fled the scene. Defendant contacted Father Raymond Wieber and met with him at the St. Lawrence Church. Defendant talked with Father Wieber for approximately thirty minutes and asked him to drive him to jail, where he surrendered to police.

I.

Defendant first requests that this Court change our standard of review on the issue of adequacy of counsel. This Court has held that:

"Isolated poor strategy, bad tactics, a mistake, carelessness, or inexperience does not necessarily amount to ineffective counsel unless, taken as a whole, the trial was a mockery of justice." Blackburn v. State, (1973) 260 Ind. 5, 22, 291 N.E.2d 686, 696; Lowe v. State, (1973) 260 Ind. 610, 612, 298 N.E.2d 421, 422.

See also Hendrickson v. State, (1954) 233 Ind. 341, 118 N.E.2d 493. We have recently held that this standard, modified by the "adequate legal representation" standard of Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919, is still a worthy standard. Cottingham v. State, (1978) Ind., 379 N.E.2d 984. Again we are not persuaded to change this standard.

II.

In applying the mockery of justice adequacy standard, this Court will look to the totality of the circumstances at trial. Blackburn v. State, supra. There is a presumption that an attorney has discharged his duty fully, and it requires strong and convincing proof to overcome this presumption. Isaac v. State, (1971) 257 Ind. 319, 274 N.E.2d 231. If every mistake or oversight made in the preparation of a case or at trial, perceived in the leisure of retrospection, should be considered probatory of legal incompetency, then the majority of all criminal defendants might validly assert such a claim. Robbins v. State, (1971) 257 Ind. 273, 274 N.E.2d 255. This Court has consistently sought to determine how, and if, a defense attorney's "inadequacies" have harmed the defendant at trial. Lowe v. State, supra.

Defendant details several instances of alleged inadequacy on the part of his trial counsel. First, defense counsel failed to make an opening statement and failed to take any notes in preparation for trial. While many attorneys may find such procedures extraordinary, we do not find that, as a matter of law, these omissions deprived defendant of effective assistance of counsel. From the record at the hearing on defendant's motion to correct errors, it appears that defense counsel always waives opening statement as a matter of routine trial strategy.

Defendant claims trial counsel should have demanded that opening statements and voir dire be recorded. The trial judge, in a lengthy memorandum opinion on defendant's belated motion to correct errors, noted that this sort of decision reflects:

"a distinction between an exceptionally careful defense lawyer and a defense lawyer who may in part conform to trial court practice in carrying out the administration of a busy trial court."

The judge pointed out that failure to record voir dire or opening argument is not uncommon in the Delaware Circuit Court. Defendant argues that failure to record proceedings is a ground for determining ineffective assistance of counsel and cites Hillman v. State, (1954) 234 Ind. 27, 123 N.E.2d 180, as authority for this proposition. However, in Hillman, this Court concluded that since none of the trial proceedings was recorded defendant was in effect denied his right to appeal by his counsel's failure to request a court reporter. This is not true in the case at bar. If something prejudicial had occurred during voir dire or opening statements, defense counsel could object and a court reporter could be called for the purpose of making a record.

Several alleged mistakes by trial counsel could not possibly have prejudiced defendant. Included among them: failure to conduct proper legal research regarding the constitutionality of the death penalty when defendant was sentenced to life imprisonment; failure to file a timely amended motion to correct errors when defendant was granted leave to file a belated motion to correct errors and a full hearing thereon and a motion for mistrial filed after the verdict when, while it was filed at the wrong time, defendant does not argue that a timely motion for mistrial would have afforded him relief.

Defendant argues that he was prejudiced by counsel's failure to file an adequate motion in limine to limit some of the testimony of Patty Elder, the main prosecuting witness. However, again it appears that the defense counsel did not inadequately serve his client's interest here. The trial judge answered this allegation in the following manner:

"The motion was an inadequate motion but even if the motion had been more artfully drawn, considering the overall theory of the defense counsel in the presentation of this case . . . there is little likelihood that motion could have been successful."

We believe the trial judge was in a better position to make this determination than is this Court, since the issue of the denial of the motion in limine is not before us.

Defendant relies heavily upon the fact that his counsel did not interview defense witnesses prior to putting them on the stand. However, defendant does not say what these witnesses would have said had counsel conducted a more informed direct examination. Consequently we will not find that defendant's representation was inadequate because of the failure to interview. Wynn v. State, (1976) 265 Ind. 133, 352 N.E.2d 493.

Defendant contends that defense counsel could have interviewed and called several more witnesses who would have testified for the defense. Darlene Dozier allegedly would have testified that both Darlene's phone and Patty Elder's phone worked on the day of the crime, but Elder did not summon police. Others allegedly would have testified that defendant's car frequently overheated, thereby rendering overheating on the day of the crime more likely. Counsel may not have been aware of the potential contribution these witnesses could have made to defendant's case, especially in light of his practice of not interviewing any witnesses. However, just as likely, his decision not to call these witnesses may have been a result of a strategy determination regarding the importance of the allegedly available testimony. We do not have here a case like Thomas v. State, supra, in which the defense counsel failed to contact witnesses who would have said that they committed the crime and that defendant was not present.

Defendant does not state specifically what could have been brought out in favor of defendant had Father Wieber been called as a defense witness. Father Wieber did testify for the state. Again it must be shown how defendant's case was prejudiced by the failure to call a witness.

Defendant claims he would have been afforded better representation had his attorney at trial visited the scene of the crime. He claims that if his counsel visited the scene he could have challenged a sketch which showed the bathroom door behind which defendant had been hiding as being hinged on the wrong side. However, defendant's counsel asked defendant about the hinge on direct examination and defendant pointed out that the drawing was wrong. And defense counsel established the confusion on this subject in Patty Elder's mind when he cross-examined her. Furthermore, from the record as a whole, it does not appear that the exact positioning of defendant's hiding place was a factor in the evidence establishing the elements of the crime of which defendant was convicted. Defendant claims a visit to the scene of the crime would have...