Dean v. State
| Decision Date | 14 April 1982 |
| Docket Number | No. 580S122,580S122 |
| Citation | 433 N.E.2d 1172 |
| Parties | Keith DEAN and Cornelius Harper, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Tony L. Axam, Robert Altman, Atlanta, Ga., Gary Granader, Detroit, Mich., Charles H. Graddick, Gary, for appellants.
Theodore L. Sendak, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants (Appellants) after trial by jury were convicted of Kidnapping, Ind.Code § 35-1-55-1 (Burns 1975), Rape, Ind.Code § 35-13-4-3 (Burns 1975), and Robbery, Ind.Code § 35-13-4-6 (Burns 1975) and were sentenced to three concurrent terms, the longest of which is life imprisonment. This direct appeal presents the following issues:
(1) Whether Defendants were denied the effective assistance of counsel by virtue of being represented by the same attorney.
(2) Whether Defendants were denied their rights to a speedy trial.
(3) Whether Defendants were denied a fair trial because of prosecutorial misconduct.
(4) Whether the trial court erred in denying a motion for a new trial premised upon a claim of newly discovered evidence.
(5) Whether the trial court erred in refusing to admit the results of a polygraph examination at the hearing upon the Motion to Correct Errors.
(6) Whether the trial court erred in refusing to grant immunity to two witnesses at the hearing upon the Motion to Correct Errors.
(7) Whether the evidence is sufficient to sustain the convictions.
(8) Whether the trial court erred in refusing Defendants' tendered instruction upon the defense of misidentification.
(9) Whether the trial court erred in denying Defendants' Belated Motion to Correct Errors, which asserted that the Prosecutor used unconstitutionally obtained identification evidence and inadmissible hearsay to convict Defendants.
(10) Whether Defendants were denied the effective assistance of counsel.
The evidence most favorable to the State reveals that shortly after midnight on September 12, 1977, the prosecutrix drove her automobile into her driveway in Gary. A 1975 Ford station wagon entered behind her. She thought she recognized the station wagon and she left her vehicle and approached it. Two black males, who occupied the station wagon, requested directions to West Harrison. She "was immediately frightened" and "saw a bad situation" but gave the directions and acceded to the driver's request to come closer to demonstrate the directions on a map. At this time she "was scared to death" and knew she "was in a bad situation." Upon observing the driver "go for the car handle of his door," she jumped back into her vehicle. She locked her door and tried to back out, but the driver approached her with "a very large gun" and said, "this is a hold-up, get out of the car."
At that moment, she noticed the second male. The two forced her into their station wagon, after making sure that she had her purse. They rode through Gary for awhile, during which time both males emptied her purse, and she observed that the other male was also armed. When they came to a lonely stretch of road on 11th Avenue in Gary, the station wagon was stopped. The two males then took turns sexually assaulting her, and after consuming some wine, they left her near her home, at her request. As the station wagon departed, the prosecutrix observed the license plate and then ran to her parents' home, which was nearby, to summon the police. The entire incident lasted no more than an hour.
Immediately prior to trial the following occurred:
At trial Defendants presented different alibi defenses. They point to a difference in the strengths of those defenses. Prior to trial a polygraph examination indicated that one Defendant knew something about the incident and the other did not. Thereafter, they claim that trial counsel, the court, and the State irrevocably tied their fates together so as to preclude the possibility of an individual defense. Also at trial Defendant Harper's alibi was severely weakened by a rebuttal witness. Defendants maintain that the impeachment of one alibi prejudiced the other.
The United States Supreme Court has recognized that a lawyer forced to represent co-defendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment. Cuyler v. Sullivan, (1980) 446 U.S. 335, 345, 100 S.Ct. 1708, 1716-17, 64 L.Ed.2d 333, 345. However, unless the trial court knows or reasonably should know that a particular conflict exists, it need not initiate an inquiry. Id. at 347, 100 S.Ct. at 1717-18, 64 L.Ed.2d at 346.
Though the circumstances which give rise to the claimed conflict of interest between Defendants were not brought formally to the trial judge's attention until after the trial, the relative difference in merit between their individual alibis was apparent during the presentation of evidence. "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346-47.
Defendants, cognizant of the Cuyler standard, do not explain any of trial counsel's alleged inadequacies in terms of what would have been done differently if he had represented only one defendant and another lawyer had represented the other defendant. Defendants would have faced these same conflicts, with respect to the relative merits of their individual defenses, even if they had had separate counsel. We do not have before us a record which shows a lawyer who struggled to serve two masters and in the process may have compromised the interests of one, as occurred in Wood v. Georgia, (1981) 450 U.S. 261, 267-68, 101 S.Ct. 1097, 1101, 67 L.Ed.2d 220, 227-28 or Glasser v. United States, (1942) 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 702.
Defendants contend that they were denied their rights to a speedy trial under Ind.R.Crim.P. 4(C) and under the State and Federal Constitutions.
The record shows that trial counsel made no motion for discharge at any time prior to the trial, despite the seventeen (17) month incarceration of his clients. Appellate counsel, who also represented Defendants at the proceedings after trial, filed a motion for discharge pursuant to Rule 4(C) after the trial. Such a motion was not timely. A summary of the record as set out in the State's Brief shows that defense counsel acquiesced to the setting of trial for a date beyond the one year limit and thus waived his incarcerated clients' rights under Rule 4(C). 1 Little v. State, (1981) Ind., 415 N.E.2d 44, 46; State ex rel. Wernke v. Hendricks Superior Court, (1976) 264 Ind. 646, 650, 348 N.E.2d 644, 647; Snelling v. State, (1975) 163 Ind.App. 546, 550, 325 N.E.2d 227, 230; State v. Henry, (1975) 163 Ind.App. 305, 323 N.E.2d 258. See Utterback v. State, (1974) 261 Ind. 685, 687, 310 N.E.2d 552, 553-54.
In their brief, Defendants attach some significance to trial counsel's April 16, 1979 objection to a continuance until April 30, 1979, the date of trial; however, the ground for the continuance, a congested calendar, is specifically provided for by Criminal Rule 4(C). Fortson v. State, (1978) 269 Ind. 161, 166, 379 N.E.2d 147, 151.
In determining whether or not there has been a constitutional violation of the right to a speedy trial, the court must consider the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice, if any, to the defendant. Barker v. Wingo (1972) 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. The task of balancing these factors is a difficult one; however the United States Supreme Court appears to assign great weight to the third factor:
"We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18.
Defendants argue very forcefully that they were severely prejudiced by the delay. During their incarceration they matured in age, height, and weight, so that at the time of trial they perfectly matched the prosecutrix's descriptions of her assailants. At the time of the incident, Defendants were two years younger, and each was approximately six inches shorter, and forty pounds lighter. Also at trial, Defendant Harper's alibi witnesses could not remember the exact date upon which he had been in a fight and had sustained a very noticeable injury to his mouth. The prosecutrix admitted that she was close enough to her assailants to see their faces but she did not see any bruise or notice anything unusual on their faces. Additionally, she testified that her memory of the event had improved with time and that she was more certain of her assailants' identities at trial.
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