Harrison v. State

• Decision Date: 20 November 1975
• Docket Number: No. 2--973A194,2--973A194
• Citation: 166 Ind.App. 602,337 N.E.2d 533
• Court: Indiana Appellate Court
• Parties: David HARRISON, Appellant, v. STATE of Indiana, Appellee.

Page 533

337 N.E.2d 533

166 Ind.App. 602

David HARRISON, Appellant, v. STATE of Indiana, Appellee.

No. 2--973A194.

Court of Appeals of Indiana, Second District.

Nov. 20, 1975.

Rehearing Denied Dec. 22, 1975.

Harriette Bailey Conn, Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for appellee.

SULLIVAN, Presiding Judge.

Defendant David Harrison appeals from the denial of his Petition for Post-Conviction Relief ¹ which attacked his convictions of Possession of Heroin and Possession of Marijuana. ²

Harrison's convictions were affirmed on direct appeal. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98. The sole issue in that appeal--the legality of the method by which the police seized the unlawful drugs--'was waived by appellant when counsel for the appellant expressly stated (at trial) that he had no objection to the admission of the questioned objects into evidence.' 258 Ind. at 362, 281 N.E.2d at 99.

In this appeal Harrison makes the following assertions:

1. Irregularities in the judicial proceedings leading ³ to Harrison's convictions denied him a fair trial;

2. He did not receive effective assistance of counsel at the trial and pretrial proceedings; ⁴

3. Admission of the evidence obtained as a result of the allegedly illegal search and seizure violated his constitutional rights; ⁵ and

4. Impropriety in the appointment of Harrison's appellate counsel denied him due process. ⁶

The facts surrounding Harrison's arrest and the seizure of the disputed evidence were summarized by the Supreme Court as follows:

'Appellant was under parole supervision from December 23, 1968, until his arrest on the instant charge. On December 3, 1969, a parole warrant was issued for appellant's arrest for the stated reason that he had absconded supervision and could not be found by his parole officer. Authorities learned the whereabouts of appellant on August 3, 1970. The next day officers arrived at appellant's place of lodging to arrest him on the parole violation warrant. At the time the officers took the appellant into custody they noticed a 'cooker' sitting in plain view on top of a dresser. A further search revealed a weapon, marijuana, heroin and a syringe.' 281 N.E.2d at 98.

The record before us discloses the following additional facts: After his arrest, Harrison was placed in the Marion County Jail, where he remained at least until the completion of his bind-over hearing on September 8, 1970. Sometime between the arrest and the completion of the bind-over hearing, Harrison contacted Attorney Brent Barnhart from the jail. Mr. Barnhart represented Harrison in municipal court on September 8 when the defendant was bound over to criminal court.

On December 8, 1970, the Marion County Grand Jury issued a two-count indictment for violation of the 1935 Narcotics Act. Though unclear from the record, Harrison presumably was in the County Jail from September to December 8, 1970, since the capias issued on the latter date shows by its return that it was served on defendant in the jail.

On December 17, 1970, Harrison was taken from the Marion County Jail and was arraigned in Criminal Court 2 before Judge Pro Tem P. K. Ward. According to Harrison's testimony at the PCR hearing, he protested to Judge Pro Tem Ward that this own attorney Mr. Barnhart was not present and that therefore he should not be arraigned. Judge Pro Tem Ward disregarded these protests and appointed a public defender, James G. Nedeff, to represent Harrison at the arraignment. Mr. Nedeff pleaded the defendant not guilty and Harrison was returned to jail. Burnhart testified at the PCR hearing that he was not notified of the arraignment and did not learn about it until sometime later.

Attorney Barnhart entered his appearance on behalf of Harrison in Criminal Court 2 on December 24, 1970. Four days later Barnhart filed a motion to suppress the evidence obtained by the search. According to his testimony at the Post-Conviction hearing (corroborated by Attorney Barnhart), Harrison was then returned to the prison at Michigan City where he had been sent upon the parole violation and where he remained until only one or two days before trial.

On the morning of March 30, 1971, prior to the Hearing on the Motion to Suppress, Attorney Barnhart orally requested a continuance of the jury trial set for that afternoon. The State did not object. Barnhart told the court that he had been unable to find two witnesses thought crucial to the defense. Special Judge William Dougherty (Regular Judge Saul I. Rabb having been disqualified for 'bias' alleged in a change of judge motion) initially granted the continuance. After the suppression hearing had lasted for sometime, Special Judge Dougherty told Barnhart and the prosecutor that he had changed his mind respecting the continuance and would deny the motion. No one objected to the court's retraction of its grant of a continuance and the hearing resumed, ultimately concluding adversely to Harrison.

After the suppression hearing and the noon recess, Harrison agreed to waive trial by jury. Attorney Barnhart told the court at that time that they were ready to proceed to trial without a jury. No further request for a continuance was made. The jury was then dismissed. The bench trial was conducted and Harrison was convicted of both charges.

Harrison requested court-appointed counsel in order to prosecute a direct appeal. His request was granted and Special Judge Dougherty appointed Attorney P. K. Ward to take the appeal. Harrison vehemently protested Ward's appointment via letters to the court, asserting that Ward had presided over his arraignment and had in Harrison's opinion, displayed a callous disregard of Harrison's rights by forcing a court-appointed attorney upon Harrison at that time. Harrison's objections were unsuccessful. Ward took the appeal in Harrison's behalf. The convictions were affirmed, as hereinbefore noted.

The State's answer to Harrison's post conviction petition avers that all four of his contentions have been 'waived'. Presumably this response was intended to invoke the general rule that issues not raised but available to a defendant in his original appeal cannot be considered in post-conviction relief proceedings. See Greer v. State (1975), Ind., 321 N.E.2d 842; Brown v. State (1974) Ind., 308 N.E.2d 699; Davis v. State (1975), Ind.App., 328 N.E.2d 768; McKinley v. State (1975), Ind.App., 325 N.E.2d 470. Despite the apparent applicability of this rule to certain of Harrison's arguments, the post-conviction court herein did not find a waiver to have occurred, and the State did not file cross-erros on appeal alleging that the trial court erred in failing to make special findings and conclusions on the issue of waiver. We therefore cannot base our decision upon a waiver principle. Johnson v. State (1974), Ind., 313 N.E.2d 542, 544; see also Gross v. State (1974), Ind.App., 320 N.E.2d 817, 820.

I. ALLEGED IRREGULARITIES IN JUDICIAL PROCEEDINGS DID NOT DENY HARRISON A FAIR TRIAL

(A) ERROR IN ARRAIGNMENT NOT GROUNDS FOR RELIEF

Harrison argues that since his right to counsel guarantees him representation at arraignment, Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557; Goff v. State (1960), 240 Ind. 267, 163 N.E.2d 888; Collins v. State (1975), Ind.App., 321 N.E.2d 868, and since that right guarantees him the opportunity to secure counsel of his own choice, Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.2d 158, he was effectively denied his constitutional rights by being forced to go through arraignment with counsel appointed by the court over his objection. The prejudice to him, Harrison asserts, lies in the fact that he was denied the opportunity to consult with counsel of his own choosing at a crucial stage of the process.

We agree with Harrison that retained counsel should have been given reasonable opportunity to represent him at the arraignment. We must, however, agree with the reviewing court below that the arraignment procedure followed does not warrant reversal. Harrison pleaded not guilty at the arraignment. There has been no suggestion that his representation at the arraignment was less than adequate. Harrison admits that the indictment was not subject to any pre-arraignment attacks by a Motion to Quash, Ind.Ann.Stat. § 9--1129 (Burns 1956). ⁷ In short, Harrison has failed to show that the denial of an opportunity to consult with his retained counsel at the arraignment prejudiced him.

(B) NO UNDUE INFLUENCE BY REGULAR JUDGE OVER SPECIAL JUDGE IN THE DENIAL OF THE CONTINUANCE

Harrison asserts that the manner in which Special Judge Dougherty retracted his grant of the continuance reflects a practical control over the special judge's actions by Regular Judge Saul I. Rabb, who disqualified himself upon defendant's motion alleging bias. This alleged undue influence assertedly stripped the entire proceedings of its essential cloak of fairness, thus violating Harrison's rights to due process of law. Specifically Harrison can only point to the supposed unreasonable retraction of the continuance as evidence of Judge Rabb's 'bias' having permeated the proceedings.

The reviewing judge below found that Harrison did not sustain his burden of proof of undue influence by the regular judge. Given the permissible scope of our review, ⁸ we cannot disagree. In retracting his earlier grant of the continuance, Special Judge Dougherty stated that:

'The jury is back there, and we are going to have to go through with the jury today. I am going to have to overrule, and change my statement. The jury is waiting, and the Judge needs the court, and you both assured me that you would go to trial on this today, and I'm going to have to insist that you go through today. I'm sorry.'

Judge Dougherty's remarks indicate a considered regard for the orderly and efficient administration of justice. Moreover, the record reveals that the retraction of the...