Graham v. State
| Decision Date | 15 November 1973 |
| Docket Number | No. 370S56,370S56 |
| Parties | Ernest GRAHAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
William C. Erbecker, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
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This is an appeal arising from the denial of post conviction relief. Appellant was convicted at trial of second degree murder and sentenced to life imprisonment in the Indiana State Prison. The conviction was affirmed by this Court in Graham v. State (1971), 256 Ind. 307, 268 N.E.2d 612. On April 24, 1972, the appellant filed a petition for post conviction relief which was heard and denied on December 27, 1972. From the overruling of his motion to correct errors, appellant instituted this appeal.
Appellant first contends that he was denied effective assistance of counsel in preparation for his original trial. Appellant is not impugning the competency of his trial attorney, but rather is alleging that his counsel was not afforded adequate time for preparation. The record discloses that the trial court appointed counsel on the morning the cause was set for trial. Appellant alleges that the court-appointed lawyer conferred with him only twenty (20) minutes prior to the trial's commencement. That fact appearing, without more, would unhesitatingly lead this Court to the conclusion that the right to effective counsel was impaired by lack of adequate preparation where the crime charged is murder. However, our examination of the instant facts does not end here. On the day that trial counsel was appointed, appellant was given the opportunity to continue his case to provide for adequate preparation time. The following colloquy took place between the trial court and the appellant.
Contrary to appellant's contention, he was not 'forced to trial' with inadequate representation. The trial court gave the appellant more than ample opportunity to prepare for his defense through a continuance of the cause. The court repeatedly explained the appellant's right to postpone the trial in order to allow counsel to better assist him. Nevertheless, the appellant insisted upon an immediate trial.
The State argues that the appellant waived his right to adequate time for trial preparation by insisting upon an immediate trial on November 17, 1969. As we have previously stated, waiver is the voluntary relinquishment of a known right. Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538. Finding waiver of constitutional rights is not to be lightly undertaken. However, on the facts of this case, we agree with the State that appellant did waive his right to adequate time for trial preparation. Appellant was fully apprised of the possible consequences of rushing into trial. He responded affirmatively when queried as to whether he understood the choice he had made.
Appellant is also alleging that he was denied due process of law in that he was convicted upon perjured testimony. He contends that if certain taxicab records were produced, they would show that one of the State's witnesses was lying at trial. Appellant's contention amounts to a belated attempt to introduce evidence known to him at his earlier trial in order to controvert evidence which convicted him. Collaterally, the appellant attacks the character of the same witness, alleging, inter alia, that she is a heavy drinker. It is apparent that the appellant is not raising newly discovered evidence, but is instead attempting to re-argue the sufficiency of the evidence which convicted him. The sufficiency of the evidence was fully reviewed by this Court on the previous direct appeal. Graham v. State, supra. Post conviction relief is not a substitute for direct appeal. P.C. 1 § 1(b).
Finding no error in the post conviction relief hearing, the judgment of the trial court is hereby affirmed.
While I can readily agree with the majority's statement that a total preparation time of twenty minutes for the defense in a case involving a charge of murder would 'impair' the right of effective assistance of counsel, I cannot conclude from the record here that there was a valid and sufficient waiver of this right.
I believe it is necessary for a proper analysis of the issues presented here that we recognize that the right which appellant was called upon to relinquish in this proceeding amounted to nothing less than an outright waiver of his Sixth Amendment right to the effective assistance of counsel. It has been explicitly and repeatedly recognized by both the United States and Indiana Supreme Courts that adequate pre-trial preparation time is implicit in the constitutional right to counsel.
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