Davis v. State
| Decision Date | 02 June 1975 |
| Docket Number | No. 2--774A160,2--774A160 |
| Parties | Wendell Wilkie DAVIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender of Indiana, Eugene C. Hollander, Deputy Public Defender, for appellant.
Theodore L. Sendak, Atty. Gen., Russell W. Sims, Deputy Atty. Gen., for appellee.
This appeal arises from the denial of Davis' petition for post-conviction relief under Indiana Rules of Procedure, Post-Conviction Remedy Rule 1. Davis was tried by jury and convicted of first degree burglary in 1971. Following this conviction, Davis filed an appeal before this Court based solely on the contention that he was denied a fair trial because there were no Negroes on the jury which convicted him. This appeal was unsuccessful. Davis v. State (1972), Ind.App., 281 N.E.2d 833. In 1973, Davis filed a petition for post-conviction relief which was denied. On his appeal from this denial of post-conviction relief, Davis raises the following issues:
Issue One: Was Davis' trial counsel so inadequate in Davis' defense that Davis is now entitled to a new trial?
Issue Two: Was Davis' appellate counsel so inadequate that the State's waiver objection should have been overruled at the post-conviction hearing?
We affirm the trial court's judgment upon Issue One. Davis was provided with competent counsel. Upon Issue Two, Davis was not permitted to present evidence which could have possibly exhibited to the trial court a failure to preserve substantial appealable issues and a failure of adequate appellate counsel. The evidence offered by Davis should have been admitted by the trial court so that it could make a preliminary determination upon the competence of appellate counsel before ruling upon the waiver issue presented by the State's answer. We remand upon Issue Two with instructions to admit the evidence offered and to make the preliminary determination upon adequacy of appellate counsel.
When reviewing the denial of a post-conviction relief petition, this Court can not weigh the evidence nor judge the credibility of witnesses. Before this Court will disturb the decision of the trial judge denying post-conviction relief, the appellant must show that the evidence presented led to but one conclusion and the trial court reached an opposite conclusion. Baker v. State (1974), Ind., 319 N.E.2d 344; Baynard v. State (1974), Ind.App.,317 N.E.2d 897.
Regarding competency of counsel, it has been more than frequently stated by this Court and the Supreme Court of Indiana that there is a presumption that defense counsel is competent. This presumption can be overcome only if it can be shown that what the attorney did or did not do, made the proceedings a mockery and shocking to the conscience of the Court. Kindle v. State (1974), Ind.App., 313 N.E.2d 721; Baynard v. State, supra.
At his post-conviction relief hearing, Davis testified that his trial counsel failed to interview his brother, a possible witness, and failed to file a motion for change of venue from the county. Also, Davis asserted that he did not believe his trial counsel was prepared for trial. Although Davis' trial counsel was not called as a witness at the post-conviction relief hearing, the record of Davis' jury trial was submitted to the hearing judge. 1 This record discloses that prior to Davis' jury trial, out of the presence of the jury, Davis' trial counsel asked him several questions concerning these matters. Trial counsel questioned Davis regarding his refusal to sign an alibi notice as follows:
'
This testimony reasonably supports a conclusion that trial counsel's failure to interview Davis' brother stemmed from Davis' refusal to sign the notice of alibi.
Before trial and out of the presence of the jury, Davis personally made a motion for a change of venue. The following exchange occurred:
'MR. BURTON: Didn't we discuss a change of venue?
'
'
'
'
The failure of counsel to seek a change of venue from the county is not per se indicative of incompetency of counsel. Kidwell v. State (1973), Ind., 295 N.E.2d 362. At his post-conviction relief hearing, Davis asserted that he wanted a change of venue because of his reputation in the community of Anderson as the 'cat burglar.' However, the above testimony by Davis prior to his trial does not disclose that this was his reason for seeking a change of venue at the time of trial.
Finally, Davis asserted at his post-conviction relief hearing that his attorney was not prepared to go to trial. Although Davis testified that his trial counsel met with him only twice before trial, we can not say on appeal that the trial court erred in determining that Davis was adequately represented at trial. Haddock v. State (1973), Ind., 298 N.E.2d 418. The testimony set out above demonstrates that Davis was uncooperative with his trial counsel, and Davis himself stated that he had no evidence. Although Davis' counsel had no evidence to present at trial, the transcript of Davis' jury trial shows that Davis' counsel made frequent evidentiary objections, vigorously cross-examined the State's witnesses and made a motion for directed verdict. Davis has not sustained his burden of showing that his representation at trial was inadequate.
Davis' post-conviction relief petition alleged other grounds entitling him to post-conviction relief besides incompetent trial counsel. 2 The State asserted that these other grounds for relief had been waived, since they had not been raised in Davis' original appeal. 3 To overcome the State's waiver defense, Davis attempted to show that his appellate counsel was inadequate in two respects:
1. Appellate counsel inadequately presented the sole issue raised in the direct appeal.
2. Appellate counsel failed to preserve other meritorious appealable issues in Davis' direct appeal.
Davis was allowed to put into evidence his Appellant's Brief presented to this Court on his direct appeal. 4 Davis also attempted to present evidence on the sufficiency of the evidence to support his conviction and on prejudicial pre-trial publicity. Each attempt to introduce evidence on these issues was met by an objection by the State on the grounds that these issues had been waived. These objections were consistently sustained by the hearing judge who then prohibited Davis' counsel from making an offer to prove which is required by this Court to preserve error. Burnett v. State (1975), Ind.App., 322 N.E.2d 125 (On Petition for Rehearing). For example, when Davis' counsel attempted to present evidence at the post-conviction relief hearing on prejudicial pre-trial publicity, the following exchange occurred:
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