Harrington v. State, 1282S502
| Decision Date | 09 February 1984 |
| Docket Number | No. 1282S502,1282S502 |
| Citation | 459 N.E.2d 369 |
| Parties | Tony W. HARRINGTON, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner, Tony Harrington, is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted of burglary, a Class C felony, of theft, a Class D felony, and of being a habitual criminal. Thereafter, petitioner was sentenced to a term of imprisonment of thirty-eight years. We affirmed his convictions in Harrington v. State, (1981) Ind., 421 N.E.2d 1113. He raises the following two issues in this petition:
1. Whether he was denied his constitutional right to the effective assistance of counsel at trial; and
2. Whether there was sufficient evidence to support the convictions.
We first note that it is recognized that petitioner has the burden of proving his grounds for relief by a preponderance of the evidence at the post-conviction relief proceeding. Ind.R.P.C. 1, Sec. 5; Garringer v. State, (1983) Ind., 455 N.E.2d 335. In our review of the denial of a petition for post-conviction relief, this Court does not weigh the evidence or judge the credibility of witnesses. Only when the evidence is without conflict and leads to but one reasonable conclusion contrary to that reached by the trier of fact will the decision be reversed as contrary to law. Davis v. State, (1983) Ind., 446 N.E.2d 1317; Henson v. State, (1979) 271 Ind. 325, 392 N.E.2d 478.
Petitioner asserts the trial court erred when it concluded he was not denied effective assistance of counsel. He alleges that his counsel's action and inaction, in the following particulars, rendered his representation inadequate: (1) failure to object to questions in a timely fashion; (2) failure to request the court to admonish the jury to disregard answers where objections were sustained; (3) failure to make objections on proper grounds; (4) failure to properly review his successful Motion to Suppress during trial; (5) failure to cross-examine witnesses; (6) failure to use an intoxication defense; (7) introducing evidence of petitioner's history of drug abuse; and (8) that counsel prepared and presented "inadequate" motions and briefs for appellate review.
Petitioner concedes that his contention is governed by the standard of whether his representation constituted a "mockery of justice," as modified by the requirement of "adequate legal representation." Adams v. State, (1982) Ind., 430 N.E.2d 771 (Hunter, J., dissenting); Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. The standard is implemented with the corollary presumption that counsel is competent; strong and convincing evidence must be presented in order to overcome the presumption. Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160.
1. & 2.
Petitioner first charges that his trial counsel failed to make timely objections and thereby exposed the jury to prejudicial information. Petitioner refers us to three instances in the record where his counsel failed to object to improper questions before they were answered. He cites Tinnin v. State, (1981) Ind., 416 N.E.2d 116, for the proposition that the proper time to object is after a question is asked but before an answer is given. While we agree that the proper time to object is before the witness answers, it appears from the record here that counsel may well have objected as soon as possible after the questions. In each instance cited by petitioner the witness was only able to say a couple of words before counsel stood and entered his objection. In any event, each objection entered was sustained and thus petitioner cannot now complain that any errors were waived by counsel's untimely objections.
Petitioner also complains that his counsel failed to request the court to admonish the jury to disregard two witnesses' answers to improper questions. Although each of counsel's objections was sustained and a request for an admonishment would be the appropriate move, petitioner fails to show how he was harmed by these alleged inadequacies.
3.
Petitioner also asserts that on one occasion during trial his counsel failed to object on proper grounds. He refers us to when the state sought to introduce two photographs depicting the building where the burglary and theft occurred. A witness who was at the building that night testified that the photographs were an accurate representation of the building on the night in question. Petitioner's counsel objected to the photographic evidence and argued that it was irrelevant. The trial court properly overruled counsel's objection and admitted the photographs into evidence. Petitioner now asserts that his counsel should have asked a preliminary question and that by not doing so he allowed the photographs to be erroneously admitted. This claim is without merit. Significantly, petitioner fails to suggest here any type of preliminary question which should have been asked and how it would have led to a proper objection. Moreover, we fail to see, and petitioner has failed to explain, how the photographic evidence was harmful to his case since it was merely demonstrative and in no way connected petitioner with the crime.
4.
Prior to trial petitioner's counsel filed a Motion to Suppress "any and all evidence obtained as a result of the arrest of Tony Harrington [because] the state has failed to maintain a proper chain of custody." The trial judge withheld ruling on the motion at that time. He then invited counsel to renew his motion after the swearing in of the jury. However, counsel neither renewed his motion nor asked for a hearing and the record shows that the various items of physical evidence were to be ruled upon as the trial progressed. Petitioner now maintains that his counsel was ineffective because he failed to object to the questionable evidence at trial and thereby waived the issue on appeal. However, petitioner in his brief neither indicates what evidence was objectionable nor where in the record...
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Music v. State
...the burden of proving his grounds for relief by a preponderance of the evidence at the post-conviction proceeding. Harrington v. State (1984), Ind., 459 N.E.2d 369, 371; Garringer v. State (1983), Ind., 455 N.E.2d 335, 336; Ind. R.P.C. 1 Sec. 5. In our review of the denial of the petition f......
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Allgire v. State
...prior ruling as permissible and proceeded to relate the information which he actually believed to be objectionable. Cf. Harrington v. State (1984), Ind., 459 N.E.2d 369. Further, appellant did not ask that the court show a continuing objection to this evidence and did not make a motion to s......
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Shackelford v. State
...find this to be a matter of trial strategy and not an adequate basis for a finding that trial counsel was ineffective. Harrington v. State (1984), Ind., 459 N.E.2d 369. II. Standard of Appellant argues that the post-conviction court erroneously applied a harmless error standard in reviewing......
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Gambill v. State, 183
...been timely, and thus preserved for appellate review, the objection must have been made before the answer was given. Harrington v. State (1984), Ind., 459 N.E.2d 369; Tinnin v. State (1981), 275 Ind. 203, 416 N.E.2d Appellant argues the court erred when it permitted Gordesky to testify as t......