Jackson v. State
| Decision Date | 23 December 1975 |
| Docket Number | No. 874S151,874S151 |
| Citation | 339 N.E.2d 557,264 Ind. 54 |
| Parties | James Leon JACKSON, Appellant (Defendant-Below), v. STATE of Indiana, Appellee (Plaintiff-Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of post conviction relief, the petitioner (appellant) having been convicted in 1971 of robbery and of inflicting injury in the commission of a robbery. His direct appeal to this Court resulted in an affirmance by a unanimous court in our opinion authored by Justice DeBruler and found at 260 Ind. 61, 291 N.E.2d 892.
The issues presented to this Court concern (1) competency of counsel and (2) newly discovered evidence.
Section 5 of our Post Conviction Rule 1 places the burden upon the petitioner to establish his grounds for relief by a preponderance of the evidence. Also in post conviction proceedings, as in other matters tried before the court, the trial judge, as the trier of facts, is the sole judge of the weight of the evidence and credibility of the witnesses. Davis v. State (1975), Ind., 330 N.E.2d 738 and cases there cited. The trial court's findings were that the petitioner had not shown by a preponderance of the evidence that petitioner's trial counsel was incompetent throughout the proceedings, that he had called all witnesses that he knew about and knew would be favorable to the defense and that he had made a diligent effort to discover all potential witnesses and evidence favorable to the petitioner. The trial court further found that the petitioner's newly discovered evidence was not of such weight that it would likely change the result upon a retrial. The trial court concluded that the petitioner had failed to sustain his burden of proof for post conviction relief.
In reviewing the decision of the trial judge adverse to post conviction petitioners, we view only the evidence most favorable to the State; and it is only when the evidence is without conflict and leads to but one reasonable conclusion and the trier of fact has reached a contrary conclusion that the decision will be disturbed as contrary to law. Lottie v. State (1974), Ind., 311 N.E.2d 800; Hoskins v. State (1973), 261 Ind. ---, 302 N.E.2d 499.
ISSUE I. Competency of Counsel.
We recognize that the 'waiver of error' rule is a harsh one and that post conviction claims of incompetency of counsel have mushroomed as efforts to open the door to reviews of claimed error which, on many occasions, ought to have been previously presented. We also recognize that our seine for netting the bona fide incompetence claims is course and gives a petitioner seeking a new trial upon such grounds a burden even heavier than that carried in most post conviction proceedings. Nevertheless, these appear to be flaws inherent to our adversary system--flaws that we know of no way to eliminate if we are ever to have finality in any criminal judgment.
Claims of attorney errors amounting to ineffective representation fall generally into three categories. First are those acts or omissions that are so gross upon their fact as to shock the conscience in that they could not but have precluded a fair trial. Second are those acts or omissions that upon their face are so trivial as to render harm therefrom unlikely or are obviously matters of trial tactics or calculated judgments. Third are those acts or omissions that fall in-between the first two, those which, upon their face, may have seriously prejudiced the defendant's fair trial rights. Obviously, the vast majority of 'incompetence' charges are premised upon errors falling into this third category. Assuming that the petitioner in such a case carries his burden of proof as to the facts alleged, the effect must, nevertheless, be judged in context on a case to case basis; and the burden is upon the petitioner not only as to the facts but also to persuade the trial court that his trial counsel's representation was ineffective and that the 'totality of the circumstances' reflect incompetence and a mockery of justice. Meyers v. State (1975), Ind., 321 N.E.2d 201; Beck v. State (1974), 261 Ind. ---, 308 N.E.2d 697; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686. Therefore, to enable the trial court to make a proper judgment it is, in most cases, necessary for it to have before it more than a mere recital of the attorney's alleged acts or omissions--even if they be unrefuted or stipulated as true. Usually this will require the introduction of the transcript of the criminal trial, which was not done in this case. Those proceedings are not matters of which the court may take judicial notice. Majko v. State (1965), 246 Ind. 506, 207 N.E.2d 212; Fletcher Savings & Trust Co. v. American State Bank of Lawrenceburg (1925), 196 Ind. 118, 147 N.E. 524.
Summarizing the petitioner's complaints, we find his counsel accused of insufficient consultation with the petitioner and with inadequate investigation and preparation for trial. We assume that defense counsel's representation was substantially as related by the petitioner, as the prosecutor gave no rebuttal evidence. We assume that none was available to him, as a prosecutor who rests upon his judgment that the petitioner has not made a prima facie showing of entitlement to relief wagers heavily that neither the trial court nor the appeals court will be of a different opinion.
Minimal consultation does not necessarily show incompetent or ineffective representation. Nettles v. State (1975), Ind.App., 327 N.E.2d 625; Daniels v. State (1974), Ind.App., 312 N.E.2d 890. To require reversal, it must be shown that the consultation was so perfunctory that evidence capable of changing the result at trial was not presented.
To meet this test, petitioner referred to an allegedly improper identification procedure. He asserted that he was identified by the complaining witness while he was in court on an unrelated charge. However, he made no attempt to show how he was harmed by such procedure or what his attorney might have done to prevent it. We note that the complaining witness had known the petitioner for fourteen years. It is, therefore, highly unlikely that the witness was influenced by the allegedly improper identification procedure.
Petitioner further asserted that the lack of consultation prevented his telling his trial counsel of the romantic involvement that both he and the prosecuting witness had with the same woman. Since the attorney did not have this information, his failure to have offered evidence regarding it cannot be dismissed as a matter of trial strategy. If we charge counsel's ignorance of the matter to inadequate preparation, it, nevertheless, does not appear to be of such magnitude as to require a new trial. The assumed testimony was of impeaching value only, and its absence does not shock the conscience or reduce the trial to a mockery of justice. Additionally, although such evidence may have supplied a reason for the prosecuting witness to falsely accuse the petitioner, it might also have had a damaging effect, in that it also supplied a motive for the attack upon the witness.
With regard to the charge of inadequate investigation and preparation, petitioner alleges and complains that his attorney failed to call two alibi witnesses who...
To continue reading
Request your trial
-
Powers v. State
...Tungate v. State, (1958) 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36. See e.g. Clark v. State, Ind., 378 N.E.2d 850; Jackson v. State, (1975) 264 Ind. 54, 339 N.E.2d 557; and Emerson v. State, (1972) 259 Ind. 399, 287 N.E.2d Granting a new trial on ground of newly discovered evidence is with......
-
Roberts v. State
...can, under these circumstances, be considered inadequate as a matter of law. Wynn v. State, (1976) Ind., 352 N.E.2d 493. Jackson v. State, (1975) Ind., 339 N.E.2d 557. After listing these specific allegations, the Appellant goes on to argue that his trial counsel's 'lack of preparedness sho......
-
Griffin v. State
...found that such additional evidence was merely cumulative, thus defendant was not denied effective representation.); Jackson v. State, 264 Ind. 54, 339 N.E.2d 557 (1975) (When defense attorney presented the defendant's and three witnesses' alibi testimony, but not two additional alibi witne......
-
Mitchell v. State
...exceptional circumstances exist.” Bahm v. State, 789 N.E.2d 50, 58 (Ind.Ct.App.2003), trans. denied; see also Jackson v. State, 264 Ind. 54, 57, 339 N.E.2d 557, 560 (1975); Douglas v. State, 800 N.E.2d 599, 605 n. 4 (Ind.Ct.App.2003), reh'g denied, trans. denied. This prohibition derived fr......