Holland v. State

• Decision Date: 17 February 1983
• Docket Number: No. 381S70,381S70
• Citation: 444 N.E.2d 1190
• Parties: Johnny HOLLAND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1190

444 N.E.2d 1190

Johnny HOLLAND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 381S70.

Supreme Court of Indiana.

Feb. 17, 1983.

Susan K. Carpenter, Public Defender, James G. Holland, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) is serving a sentence of life imprisonment upon a conviction of Felony Murder (Robbery), Ind.Code Sec. 35-13-4-1(a) (Burns 1975). His direct appeal is reported at Holland v. State, (1976) 265 Ind. 216, 352 N.E.2d 752. This appeal from the denial of post conviction relief presents one issue. After acknowledging our standard of review in post conviction proceedings, Defendant contends that he was denied the effective assistance of counsel in three respects: a) Counsel failed to tender a written instruction upon the lesser included offense of Robbery; b) Counsel failed to request a change of venue from the judge; c) Counsel failed to investigate the case adequately.

A.

At trial, counsel objected to the proposed verdict forms for failure to include Robbery as a lesser included offense of Felony Murder. He did not thereafter tender a written instruction. In responding to this issue on direct appeal, we noted the failure to tender a written instruction and ruled that Petitioner could not, therefore, complain that an instruction upon Robbery had not been given.

Petitioner now contends that his counsel had been ineffective in that he had failed to tender the instruction and that the jury assertedly could have believed that the commission of the Robbery was not related to the commission of the homicide.

Petitioner's case falls within the rule stated in Hester v. State, (1974) 262 Ind. 284, 288-89, 315 N.E.2d 351, 354, which discusses a claim that the jury should have been instructed upon Robbery as a lesser included offense of Felony Murder where the accused had interposed an insanity defense. We there ruled that, inasmuch as the State's evidence pointed to the accused's guilt and his evidence claimed insanity, there was no evidence to which the lesser included offense instruction was applicable. In the case at bar, Petitioner asserted self defense, and that theory was presented to the jury via his tendered instructions. Consequently, Petitioner was either guilty of Felony Murder as charged or not guilty of a homicide at all. See Jones v. State, (1982) Ind., 438 N.E.2d 972, 976-77. (Defendant's evidence of intoxication was incompatible with guilt upon asserted lesser included offense); Fry v. State, (1982) Ind.App., 440 N.E.2d 1133, 1135 (Defendant's evidence of duress was incompatible with guilt upon asserted lesser included offense).

Additionally, at the post conviction hearing, counsel explained the time constraints and pressure of trial and that, while hindsight favored having tendered the instruction, he did not "think it was an error of much magnitude, because I think at the time (1975) the law was against me or against that instruction." As we have held above, counsel's understanding of the law was not inaccurate. Petitioner has not sustained his burden of showing that counsel was ineffective upon this issue.

B.

Petitioner next argues that counsel had an obligation to seek a change of venue from the judge who presided over the trial. Counsel had represented a party in a disciplinary matter against the judge. In Re Evrard, (1974) 263 Ind. 423, 317 N.E.2d 841. Counsel's involvement in that matter ended before a hearing was held upon its merits and prior to Petitioner's trial.

At the post conviction hearing, counsel explained that prior to trial he had informed the petitioner of the prior representation and they had discussed the advisability of taking a change from the judge. Petitioner, however, had informed counsel that he did not want a change of judge. Counsel memorialized Petitioner's expression in a handwritten statement dated March 7, 1975, which he signed. The document was admitted into evidence without objection.

Petitioner, aware of the contents of the record, nevertheless asserts that counsel should have secured a change from the judge "to remove any doubt" about the judge's impartiality. The unrefuted evidence in the record is that the judge was not partial against counsel:

"A. * * * My experience with Judge Evrard, after the case, was that he was such a big-minded person, such a fine, forgiving person, that he has never done the slightest thing to me nor done the slightest thing that would indicate that he held it against me in any way. In fact, I have always been sort of flabbergasted that he was so totally forgiving after the transaction was over. I found him to be a very good trial judge, good lawyer. I think his strongest point, however, is his fine judicial temperment. He lets you try the case. He doesn't jump you with both feet like some judges do. * * *." R. at 152.

The record shows that the failure to move for a change of judge was a tactical decision in which Petitioner participated. Again, Petitioner has not sustained his burden upon this assertion of ineffective assistance of counsel.

C.

At the post conviction hearing Petitioner called witnesses, who testified that had they been called at the trial, they would have stated that he and the decedent had been acquainted before the homicide. He does not explicitly reveal the relevance of this information; however, it appears that from such an acquaintance the jury might have inferred Petitio...