Dillon v. State, No. 282S67

Docket NºNo. 282S67
Citation454 N.E.2d 845
Case DateOctober 03, 1983
CourtSupreme Court of Indiana

Page 845

454 N.E.2d 845
Richard DILLON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 282S67.
Supreme Court of Indiana.
Oct. 3, 1983.

Page 846

Howard B. Lytton, Jr., Steven E. Ripstra, Lytton & Ripstra, Jasper, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Richard Dillon, was convicted by a jury of two counts of felony murder, Ind.Code Sec. 35-42-1-1(2) (Burns 1979 Repl.), one count of burglary, a Class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1979 Repl.), and one count of conspiracy to commit burglary, a Class A felony, Ind.Code Sec. 35-41-5-2 (Burns 1979 Repl.). The jury also recommended that a sentence of death be imposed upon defendant, Ind.Code Sec. 35-50-2-9 (Burns 1979 Repl.), and defendant was thereafter sentenced to death by the trial court.

Page 847

His direct appeal challenges the legality of the death sentence and presents the following issues for our review:

1. Whether the defendant was denied effective assistance of counsel at trial;

2. Whether the trial court erred in denying defendant's motion to suppress his inculpatory statement; and

3. Whether Indiana's death penalty statute is unconstitutional as violative of due process.

A brief summary of the facts from the record most favorable to the state shows that William and Mary Hilborn were found stabbed to death in their home in Petersburg, Indiana, on March 8, 1981. Defendant was observed walking in the vicinity of the Hilborns' property around the time of the murders by a deputy sheriff. He was questioned by the police at work on March 10, 1981, and at his home on March 11, 1981. He denied being in Petersburg at the time of the murders and said he had been in Princeton, Indiana, with a friend, J.R. Thompson. A knife which was identified as the murder weapon was found in Thompson's car. On March 12, 1981, the police asked defendant if he would go with them to the sheriff's office to clear up some discrepancies concerning his actions on March 8. Defendant voluntarily accompanied the officers to the sheriff's office. He signed two waiver of rights forms and gave two statements, the second of which was a confession.

I.

Defendant first alleges that he was denied the effective assistance of counsel at his trial. On July 7, 1981, approximately two weeks prior to the trial, the court held a hearing on defendant's motion to suppress. At this time his retained counsel filed a motion for postponement and continuance which reads in pertinent part:

"1. That counsel for the defendant may have not had the presence of mind to effectively represent the defendant during the course of the pre-trial proceedings, due to personal problems, to-wit:

"a. On April 15, 1981, during the course of pre-trial proceedings, counsel for the defense was divorced from his wife of eleven (11) years, which divorce was the desire of counsel's wife, and against said counsel's wishes.

"b. On April 18, 1981, counsel's brother, Ronald D. Fulcher, was seriously injured in a motorcycle accident, in Knox County, and remains paralyzed in the Veterans Hospital in Hines, Illinois at this date.

"c. That on Sunday, July 5, 1981, counsel's Father, Randall R. Fulcher, was rushed to the Veterans Hospital in Indianapolis, Indiana and on Monday July 6, 1981 underwent eleven hours of emergency heart surgery and at this date remains in an unconcious [sic] state, in serious condition.

"2. That the State continues daily to provide the defendant with new items of discovery, despite statements prior thereto that discovery is; complete, and such new discovery has led the defendant to new avenues of defense which defendant should pursue, to provide an adequate defense.

"3. That the course of the investigation by defense has turned up possible new evidence, which could not have been discovered in the short period of time allowed for pre-trial proceedings.

"WHEREFORE, defendant respectfully submits to this Court that to proceed with the trial as scheduled, after such a short period of time for preparation of its defense would effectively deprive defendant of its right to a fair trial, and that to proceed with hearings and trial as scheduled while defendant's counsel is having personal problems, and immediately after defense counsel's other personal problems would effectively deny the defendant of the right to competent counsel."

The hearing was continued on July 8, 1981, and the trial court specifically asked defendant if he was aware of his attorney's personal problems and if he wanted his attorney to withdraw. Defendant answered that he was aware of the circumstances

Page 848

but that he did not wish the attorney to withdraw. The court reminded the attorney that it was the court's duty to determine whether or not an attorney was competent to represent a defendant. Here the attorney had been hired four months prior to the trial. The court also said he had considered all the hours of preparation which had already been spent by both parties on this case, the fact that witnesses had been subpoenaed, jury panel members had been notified, and the court's calendar for the next six months was extremely congested so any delay at that time would mean a long postponement for the trial. After hearing further arguments by both sides, the court denied both the motion to suppress and the motion for a continuance. However, the record shows that after the jury had been selected the court did grant a continuance so that counsel would have an extra weekend to prepare for the trial. The trial proceeded on Monday, July 20, 1981, without further objection by defendant or his counsel.

At the hearing on the motion to correct errors the trial counsel filed an affidavit stating that due to his personal problems he had not had time to adequately prepare for defendant's trial, that he felt he had not been competent to represent the defendant properly, and that he felt a new trial should be granted. The state filed counter affidavits which summarized many of the actions the attorney had taken in preparing for this trial, his conduct during the trial itself, and the times when the various personal problems arose in relation to the time of the trial. The court denied the motion to correct errors with the following findings:

"The court finds that:

"1. There was sufficient evidence before the jury from which they could find the defendant guilty beyond a reasonable doubt."

"2. At the pre-trial hearing on defendant's motion to suppress, the court found that the statements of the defendant were admissible at trial. No new evidence was presented at trial which would have required a reversal of that ruling.

"3. The Indiana Supreme Court has upheld the constitutionality of the death penalty statute.

"4. On the first day of trial, prior to voir dire of the jury, defendant's attorney requested a continuance which was denied. He then offered to withdraw as counsel for defendant and defendant was given the opportunity to accept the withdrawal and have other counsel appointed. The defendant elected to continue with his hired counsel. Thereafter, defendant's attorney performed adequately during trial.

"5. After the evidentiary part of the trial had begun, the defendant, outside the presence of the jury, attempted to enter a plea of guilty which was rejected because the court, based upon defendant's rendition of the facts, could not find a factual basis for the plea. The court immediately thereafter sequestered the jury.

"Upon these findings the court denies defendant's motion to correct errors."

Defendant's argument of incompetency of counsel is based primarily upon the allegedly inadequate time his counsel had for preparation and the fact that counsel failed to tender any final instructions. Our law regarding the issue of competency of counsel is well settled. Counsel is presumed to have prepared and executed his client's defense effectively, and strong and convincing evidence is required to rebut the presumption. Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160. Incompetency of counsel revolves around the particular facts of each case and the reviewing court will consider the totality of the circumstances surrounding counsel's pretrial preparation and the actual conduct of the trial. The standard of review is the mockery of justice test as modified by the adequate legal representation standard. Hollon v. State, (1980) Ind., 398 N.E.2d 1273; Crisp v. State, (1979) 271 Ind. 534, 394 N.E.2d 115; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984.

Page 849

A careful examination of the record in this case reveals the following facts: counsel entered his appearance for defendant approximately four months before the trial; his wife had filed for divorce one month prior to his entering his appearance in this cause; his divorce was final eighty-nine days before the trial; his brother's accident occurred eighty-five days before trial; and his father had been ill for some time prior to trial but did not die until forty-seven days after the trial began. Thus, while we appreciate the fact that counsel was experiencing unusual pressure during that pretrial period, his personal problems and trial preparation time were spread out over a period of months, and he had a reasonable amount of time to prepare for this trial.

Defendant also argues that his counsel's failure to tender any final instructions was an indication of his incompetence. We disagree. The record shows that defendant's trial counsel prepared and tendered to the court eleven proposed preliminary instructions, but these were either withdrawn or refused as covered by the court's own instructions. The trial court gave many of its own instructions, both preliminary and final, which were sufficient to cover the necessary points of law. Defendant does not point out now any way in...

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19 practice notes
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...a clear demonstration that the essential operations of the death sentencing process have taken place." Dillon v. State (1983), Ind., 454 N.E.2d 845, 856 (DeBruler, J., concurring and dissenting), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984), writ of habeas corpus grant......
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...is questioned without restraint. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Dillon v. State (1983), Ind., 454 N.E.2d 845; Barber v. State (1981), Ind.App., 418 N.E.2d At approximately 9:45 a.m. on the same morning, responding to the report of a man needing help,......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...role, would have to have before it all the evidence from the guilt phase. This Court held in Judy, supra, Dillon v. State, (1983) Ind., 454 N.E.2d 845, cert. denied, (1984) --- U.S. ----, 104 S.Ct. 1617, 80 L.Ed.2d 145, and State v. McCormick, (1979) 272 Ind. 272, 397 N.E.2d 276, that a jur......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...vindictive justice. This issue has already been decided adversely to defendant's position in Lowery, supra; Dillon v. State (1983), Ind., 454 N.E.2d 845, cert. denied (1984), 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145; Averhart, supra; Smith, supra, 465 N.E.2d 1105; Schiro, supra; Willia......
  • Request a trial to view additional results
19 cases
  • Harrison v. State, No. 65S00-9105-DP-380
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 1995
    ...a clear demonstration that the essential operations of the death sentencing process have taken place." Dillon v. State (1983), Ind., 454 N.E.2d 845, 856 (DeBruler, J., concurring and dissenting), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984), writ of habeas corpus grant......
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1989
    ...is questioned without restraint. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Dillon v. State (1983), Ind., 454 N.E.2d 845; Barber v. State (1981), Ind.App., 418 N.E.2d At approximately 9:45 a.m. on the same morning, responding to the report of a man needing help,......
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...role, would have to have before it all the evidence from the guilt phase. This Court held in Judy, supra, Dillon v. State, (1983) Ind., 454 N.E.2d 845, cert. denied, (1984) --- U.S. ----, 104 S.Ct. 1617, 80 L.Ed.2d 145, and State v. McCormick, (1979) 272 Ind. 272, 397 N.E.2d 276, that a jur......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • March 14, 1989
    ...vindictive justice. This issue has already been decided adversely to defendant's position in Lowery, supra; Dillon v. State (1983), Ind., 454 N.E.2d 845, cert. denied (1984), 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145; Averhart, supra; Smith, supra, 465 N.E.2d 1105; Schiro, supra; Willia......
  • Request a trial to view additional results

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