Dull v. State

• Decision Date: 06 February 1978
• Docket Number: No. 675S156,675S156
• Citation: 267 Ind. 549,372 N.E.2d 171
• Parties: Jay L. DULL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 171

372 N.E.2d 171

267 Ind. 549

Jay L. DULL, Appellant, v. STATE of Indiana, Appellee.

No. 675S156.

Supreme Court of Indiana.

Feb. 6, 1978.

Harriette Bailey Conn, Public Defender, R. Davy Eaglesfield, III, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Dull was convicted of first-degree murder at the conclusion of a jury trial in Delaware Circuit Court on March 24, 1961, and sentenced to death by electrocution. This conviction was appealed to this Court and affirmed. Dull v. State, (1962) 242 Ind. 633, 180 N.E.2d 523, cert. denied, (1962) 371 U.S. 902, 83 S.Ct. 206, 9 L.Ed.2d 164. In March of 1972, appellant filed a petition for post-conviction relief pursuant to Ind.R.P.C. 1. This petition was denied as to all specifications except one, under which the court reduced appellant's sentence from death to life imprisonment. The present appeal follows from this denial.

The alleged errors before us all relate to a post-conviction assertion by appellant that his written confession, admitted into evidence at trial, was inadmissible. These issues can be reduced to two: (1) an alleged incompetency of counsel, and; (2) the admission into evidence of appellant's written confession, which was allegedly given on a promise by the prosecution that the state would not ask for the death penalty at trial.

I.

Appellant's charges against his counsel are, quite generally, that he did everything wrong. He charges that counsel did not spend the required amount of time in preparation by discussing the cause and defenses with the appellant himself, nor with any members of his family with regard to his background and character. He specifically points out many occurrences throughout the trial that went against him, and designates incompetence of counsel as a reason for the failure of his positions. Appellant's trial attorney was Mr. Clarence Benadum, who was appointed to represent appellant by the court at appellant's request, after the indictment. Mr. Benadum was in ill health and was unable to testify at the post-conviction hearing, so we do not have his testimony in the record.

The appellant testified at the post-conviction hearing that he admitted to his attorney that he gave the confession to the police and that in fact the confession was true, so that such confession was admitted as it was without objection. On three earlier occasions, in 1962, 1963, and 1964, this appellant filed petitions for writs of error coram nobis. He alleged therein that the confession he gave to the police was given at a time when he was under sedation from drugs in the hospital, and complained because Mr. Benadum did not question the attendants at the hospital and pursue this defense. There is no evidence that appellant made this claim or raised this question at the time of his trial. As a matter of fact, in 1972, appellant alleged in the P.C. petition giving rise to this appeal that he gave the confession willingly and freely, but that it was done because of a promise by the state that they would not ask for the death penalty. Appellant further complains because his attorney did not file a defense of insanity, but there is no evidence that this issue was apparent at the time of trial or would have been a viable defense.

The state presented evidence to show the following with regard to attorney Clarence Benadum: that he had a reputation for being a careful and competent criminal defense attorney; that he had tried approximately 140 murder cases before he represented appellant; that appellant asked the trial court to appoint Mr. Benadum as his attorney because appellant knew of said attorney's reputation as being the best defense counsel in Delaware county; that Mr. Benadum had tried more criminal felony cases than any living lawyer in Indiana at that time and the instant case is the only case in which Mr. Benadum lost a client to the electric chair; that it was Mr. Benadum's normal procedure to talk to and discuss the case with the defendants he represented in trial and he did interview members of appellant's family preparatory to this trial; that Mr. Benadum used the defense of insanity on many occasions and was well aware of the defense and well able to handle it, and; that Mr. Benadum had been a member of the Criminal Study Commission for several years and at one time was chairman of that commission.

It is well settled that it requires strong and convincing evidence to rebut the presumption that counsel has been competent. Incompetency of counsel revolves around the particular facts of each case, and what the attorney did or did not do must have made the proceedings a mockery of justice shocking to the conscience of the reviewing court to constitute incompetence. This court will not second-guess tactics or strategy of a particular attorney in a particular case. Hoskins v. State (1973), 261 Ind. 291, 302 N.E.2d 499; Payne v. State (1973), 261 Ind. 221, 301 N.E.2d 514; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255; Thomas v. State (1969), 251 Ind. 546, 242...