Kemp v. State, 1182S445
| Decision Date | 13 April 1983 |
| Docket Number | No. 1182S445,1182S445 |
| Citation | 446 N.E.2d 1306 |
| Parties | Malhon KEMP, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jack Quirk, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by a jury of attempted murder. He was sentenced to a term of twenty (20) years and fined $500.
Appellant claims he was inadequately represented by trial counsel. He contends his public defender met with him on one occasion, the day before trial. He additionally alleges his defense counsel failed to subpoena a substance abuse counselor from the Comprehensive Mental Health Center who was treating appellant.
There is a strong presumption that counsel is competent. A showing of convincing evidence is required to rebut that presumption. The standard of review for an issue of inadequacy of counsel is the mockery of justice test as modified by the adequate legal representation standard. Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rice v. State, (1981) Ind., 426 N.E.2d 680.
"And mere perfunctory action by an attorney assuming to represent one accused of crime, which falls short of presenting the evidence favorable to him and invoking the rules of law intended to prevent conviction for an offense of which the accused is innocent or the imposition of a penalty more severe than is deserved should not be tolerated."
Thomas v. State, (1969) 251 Ind. 546, 550, 242 N.E.2d 919.
While incompetency of counsel revolves around the particular facts of a case, this Court will not speculate about the most advantageous strategy in each case. Rather, we will seek "to determine if and how a defense attorney's 'inadequacies' have harmed the defendant at trial." Smith v. State, (1979) Ind., 396 N.E.2d 898, 900.
The record belies appellant's allegation of having only met his trial counsel the day before trial. The public defender appeared with appellant at his arraignment and bond reduction hearing previous to trial. He moved for discovery and participated in a pretrial conference. In response to appellant's apparent dissatisfaction with his representation, expressed during his sentencing hearing, defense counsel filed an affidavit with the court. The affidavit indicates counsel had an extensive conversation with appellant after being appointed his public defender. Counsel reviewed all discovery material with appellant. Appellant's statement given to the...
To continue reading
Request your trial
-
Wisehart v. State
...have been inconsistent and contradictory to the appellant's own trial testimony. Cates v. State, 468 N.E.2d 522 (Ind.1984); Kemp v. State, 446 N.E.2d 1306 (Ind.1983).20 At the time of the crimes at issue, the legislature defined insanity as the lack of substantial capacity either to appreci......
-
Shackelford v. State
...been inconsistent and contradictory to the appellant's own trial testimony. Cates v. State (1984), Ind., 468 N.E.2d 522; Kemp v. State (1983), Ind., 446 N.E.2d 1306. The theories of self-defense and intoxication are not inconsistent as a matter of law. Voluntary intoxication operates as a d......
-
Williams v. State
...and convincing evidence is required to rebut that presumption. Brown v. State, (1983) Ind., 443 N.E.2d 316, 319; Kemp v. State, (1983) Ind., 446 N.E.2d 1306, 1306-1307. The presumption is overcome only by showing that the attorney's action, or inaction, reduced the proceedings to a "mockery......