Kimble v. State

• Decision Date: 21 July 1983
• Docket Number: No. PS,PS
• Citation: 451 N.E.2d 302
• Parties: Bruce KIMBLE, Appellant, v. STATE of Indiana, Appellee. 493.
• Court: Indiana Supreme Court

Page 302

451 N.E.2d 302

Bruce KIMBLE, Appellant, v. STATE of Indiana, Appellee.

No. PS 493.

Supreme Court of Indiana.

July 21, 1983.

Bruce Allen Kimble, in pro. per.

Linley E. Pearson, Atty. Gen. of Indiana, Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Bruce Allen Kimble was convicted of first-degree murder and first-degree burglary at the conclusion of a jury trial in Marion Superior Court on September 1, 1977. He was sentenced to life imprisonment. Upon appeal to this Court, his conviction was affirmed. Kimble v. State, (1979) 270 Ind. 539, 387 N.E.2d 64. A hearing was held on appellant's motion for post-conviction relief under Ind.R.P.C. 1 in January and February, 1981. This motion was denied in December, 1981, and the appellant instituted a pro se appeal.

Seven errors are asserted in the denial of post-conviction relief but we find only the following five to be properly before us:

1) whether the trial court erred when it found that no fundamental error occurred when the final instructions were not read to the jury;

2) whether the trial court erred when it found no fundamental error occurred when final instruction 20, dealing with the ways a sentence may be reduced, was given to the jury;

3) whether the trial court erred when it found that appellant was not denied effective assistance of counsel;

4) whether the trial court erred when it would not allow appellant to represent himself with the aid of a legal assistant; and,

5) whether the accumulation of the four errors amounts to a denial of a fair trial.

We find that two of the asserted errors, dealing with prosecutorial misconduct, should have been raised on direct appeal of appellant's 1977 conviction for murder and burglary. The post-conviction relief process is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Riner v. State, (1979) 271 Ind. 578, ---, 394 N.E.2d 140, 144; Bradberry v. State, (1977) 266 Ind. 530, 539, 364 N.E.2d 1183, 1188. The record reveals that after the appellant was convicted of murder and burglary, his attorney cited prosecutorial misconduct in the motion to correct errors. However, upon direct appeal, appellant did not pursue this claim. Therefore, we find that the issues dealing with the alleged prosecutorial misconduct have been waived.

As with all post-conviction hearings, the burden of proof is on the petitioner by a preponderance of the evidence. Lenoir v. State, (1977) 267 Ind. 212, 213-14, 368 N.E.2d 1356, 1357; Perkins v. State, (1975) 263 Ind. 270, 271, 329 N.E.2d 572, 573. The trial court is the trier of fact and sole judge of the weight of the evidence and credibility of the witnesses. A judgment of the trial court will not be disturbed unless the evidence is without conflict and leads inescapably to a conclusion which is contrary to that reached by the trial court. Perkins v. State, supra; Hoskins v. State, (1973) 261 Ind. 291, 295, 302 N.E.2d 499, 501. See Turner v. State, (1972) 259 Ind. 344, 346, 287 N.E.2d 339, 341.

I

At the conclusion of the trial, the following exchange took place concerning the reading of the final instructions:

[Prosecutor Hill]: Are you going to read the instructions?

Court: If you want me to. Mr. Mayer?

[Defense counsel Mayer]: Oh, Judge, I don't care if you read them or not, we have all been here a long time, I'm going to comment on them in my argument, so I don't care if the Court reads them or not.

Mr. Hill: Me too, Judge, I'm going to comment on the instructions.

Court: So both parties would waive re-reading of the preliminary instructions and waive reading of the final instructions?

Mr. Hill: Sure, Judge.

Mr. Mayer: I think so.

Appellant claims that it was fundamental error to waive the reading of the final instructions and cites Purdy v. State, (1977) 267 Ind. 282, 369 N.E.2d 633, for support. Purdy held that the defendant has the clear right to have the final instructions read aloud to the jury. In addition, appellant claims that he did not knowingly waive the reading of the final instructions. Defense counsel Mayer usually discussed waiving the reading of the final instructions with his clients. However, appellant states that Mayer testified at the hearing that he never discussed such a matter with appellant. Appellant misstates the record. The statement Mayer made, and which appellant repeats in the brief, was in response to a different question and did not deal with appellant Kimble at all. What Mayer said was while he could not remember specifically discussing the matter, appellant must have agreed with his decision to waive the reading. Mayer reached this conclusion because he always discussed these matters with his clients before making such a decision. Regardless, we find Rice v. State, (1981) Ind., 426 N.E.2d 680, to be controlling. As found here, the defense counsel in Rice waived the reading of the final instructions. This Court held that since the decision was made before the clear right in Purdy was made known, defense counsel had done nothing wrong and the waiver did not amount to fundamental error. Id. 426 N.E.2d at 682. The same rationale applies here. Purdy was handed down in December, 1977, and appellant was convicted in September, 1977. There is no error on this issue.

II

Appellant argues that fundamental error occurred when the following instruction was given to the jury:

INSTRUCTION NUMBER 20

A person who is convicted of a crime by a jury is sentenced by the judge. In many cases the judge has certain sentencing alternatives which may include probation restitution, short sentences, rehabilitation programs, etc. In other cases the law requires the judge to sentence to a term of imprisonment that is either fixed by the law, or set by the jury.

A person who is sentenced to imprisonment for less than life is entitled by law to a reduction of his time based upon a certain schedule and upon his behavior in the institution. Also he is given credit toward his sentence for time spent in jail on this charge. For these reasons it is possible that a person could serve considerably less than the stated sentence. On the other hand, it is also possible that a person could serve the full maximum. In either case it is determined by future events beyond our present knowledge or control.

A person who is sentenced to imprisonment for life will remain in prison for life, unless the governor of this state commutes the sentence upon recommendation of the clemency commission. If this occurs, a person serving life may be paroled. On the other hand, there is no certainty that it will happen, or if it does, when it may happen. This also is determined by future events which are beyond our present knowledge or control.

Therefore, in any case when arriving at your verdict, you should not consider or speculate as to the actual amount of time a person will serve.

Appellant Kimble argues that instruction 20 improperly informed the jury about the possible ways a sentence may be reduced, thus exposing the jury to extraneous material which may have clouded the determination of guilt or innocence. Because the trial court sua sponte gave this instruction, appellant feels the error rises to the level of fundamental error.

We disagree. In a recent case, Bailey v. State, (1980) Ind., 412 N.E.2d 56, we held that the trial court, in its considered discretion, could give an almost identical instruction. We felt that an instruction of this sort aids the jury in forgetting any concerns over potential punishments. Id. 412 N.E.2d at 61. See also Cooper v. State, (1977) 265 Ind. 700, 359 N.E.2d 532; Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517. The trial court here specifically informed the jury that during its determination of guilt or innocence it was not to consider the actual time Appellant would spend in prison. We find nothing wrong with the giving of this instruction.

III

In his third argument, appellant Kimble claims that he was denied effective assistance of counsel. Appellant lists seven examples to illustrate his claim. The first two deal with the final instructions. Having already held that the instructions were properly given (see Issues I and II, supra ), we fail to see how they represent ineffective representation of counsel. Therefore, the first two examples will not be considered any further in this issue.

Our consideration of the representation by counsel was well-stated in Nelson v. State, (1980) Ind., 401 N.E.2d 666, as follows:

"An attorney is presumed to have rendered competent representation, and only a strong showing to the contrary will rebut that presumption. E.g., Robertson v. State, (1974) 262 Ind. 562, 319 N.E.2d 833. We must look to the facts of each case in order to determine whether counsel has provided his client with effective representation. E.g., Roberts v. State, (1977) 266 Ind. 72, 360 N.E.2d 825. We will not second-guess counsel's trial tactics or strategy. E.g., Loman v. State, (1976) 265 Ind. 255, 354 N.E.2d 205. An isolated mistake or instance of poor strategy does not render representation ineffective or inadequate; and representation is deemed to be adequate, unless the record reflects that the trial was reduced to a mockery of justice. E.g., Merida v. State, (1979) , 383 N.E.2d 1043."

401 N.E.2d at 669

A.

First, appellant claims that counsel did not effectively assist him at trial because he failed to object to the following colloquy between Deputy Prosecutor Hill and State's witness James Coleman:

Hill: Now haven't you discussed with your attorney and the Prosecutor's Office a reason why you don't want to be at Pendleton and Michigan City [prison]?

Coleman: Well, there's a whole lot of reasons.

Hill: Well why are you holding back, young man?

Coleman: I'm not holding back.

Hill: Well then let's have the reason.

Coleman: Well one...