Frasier v. State, 876S270

• Decision Date: 09 September 1977
• Docket Number: No. 876S270,876S270
• Citation: 366 N.E.2d 1166,267 Ind. 24
• Parties: Eddie Lee FRASIER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1166

366 N.E.2d 1166

267 Ind. 24

Eddie Lee FRASIER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 876S270.

Supreme Court of Indiana.

Sept. 9, 1977.

Harriette Bailey Conn, Public Defender, Carl L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is an Appeal from the denial of Post-Conviction Relief. The defendant (petitioner-appellant) was convicted by jury on January 31, 1973, of Armed Felony (Robbery). His direct appeal to this Court resulted in an affirmance of the trial court's judgment. (Ref. 262 Ind. 59, 312 N.E.2d 77).

This appeal seeks review of six issues:

(1) Legality of a search.

(2) Correctness of the trial court's rulings admitting certain evidence over objections.

(3) Correctness of the trial court's ruling permitting the State to reopen its case, after resting, to present additional evidence.

(4) Correctness of the trial court's ruling denying a motion for mistrial predicated upon an alleged misconduct of the bailiff.

(5) Competence of Defendant's appellate counsel.

(6) Propriety of a preliminary instruction to the jury advising that a defendant could testify or not, as he chose, and that if the defendant chose not to testify, no presumption or inference should be drawn therefrom.

ISSUES I, II, III, and IV

The defendant's arguments upon issues I through IV are mere arguments denying the correctness of the decision of this Court rendered upon the direct appeal. Each point was presented and determined, albeit erroneously in Defendant's view, in the direct appeal. These issues were not reviewable in the post-conviction proceedings. As we said in Layton v. State (1974), 261 Ind. 567, 307 N.E.2d 477 "* * * the same issue, although differently assigned, was reviewed and determined upon the defendant's direct appeal and is therefore res judicata."

ISSUES V and VI

Issues V and VI must be combined. The matter of the propriety of the instruction, if questionable, should have been presented upon the direct appeal. There was, in fact, an attempt to present the issue upon direct appeal, but the presentation was not in conformity with our appellate rules and for that reason we declined to consider it and deemed it to have been waived. The defendant here acknowledges that the issue was waived but asserts that such waiver is not chargeable to him, in that he was incompetently and ineffectively represented upon the appeal citing the waiver as an apparent oversight. This issue has no merit and may most easily be disposed of by pointing out to counsel that Gross v. State (1974), 261 Ind. 489, 306 N.E.2d 371, upon which he relies as authority for holding the instruction to have been erroneously given, was a case of first impression in Indiana, upon an issue concerning which courts were evenly divided, and our opinion therein was not filed until January 28, 1974 one year subsequent to the defendant's trial and seventeen days subsequent to the filing of the appellant's initial brief. In this era of vigorous consumer protection against professional errors, it is to be hoped, most earnestly, that the level of...