Lagenour v. State, 1179S313

Citation414 N.E.2d 295,275 Ind. 3
Decision Date31 December 1980
Docket NumberNo. 1179S313,1179S313
PartiesRoger D. LAGENOUR, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Harriette Bailey Conn, Public Defender, Larry A. Landis, Sp. Asst. Public Defender, Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from the denial of a petition for post-conviction relief. The appellant was originally convicted of kidnapping and assault and battery with intent to gratify sexual desires, in a trial in 1976 in which evidence of prior sexual offenses was admitted as part of the State's substantive case. Before the trial, defense counsel had made what was styled a motion in limine but what was in effect a motion to suppress which was aimed at excluding entirely the prior sexual offenses evidence. The motion was denied and the evidence, testimony of two witnesses who purportedly were victims of appellant, came in.

In the direct appeal, Lagenour v. State, (1978) Ind., 376 N.E.2d 475, appellant raised for review, among other things, the admissibility of this evidence, but a divided Court deemed the issue to have been forfeited because of defense counsel's failure to renew his objection when the State introduced the evidence during the course of the trial. The conviction was affirmed.

Appellant then petitioned for post-conviction relief asserting two claims. First, he contended that he had been denied his constitutional right to effective assistance of counsel because of his trial counsel's failure to preserve for appeal the question of the admissibility of the evidence of prior sexual offenses. Second, he contended that he had been denied due process of law because of the retroactive application by this Court in the direct appeal of a procedural waiver rule which resulted in the forfeiture of the right to appellate review of the admissibility claim.

Following denial of the petition for post-conviction relief, appellant filed a motion to correct errors with the trial judge, which was denied, and this appeal followed.

Two issues are presented for review. The first is whether "trial counsel's failure to preserve defendant's right to a fair trial denied (him) the effective representation of counsel to which he is entitled under the Sixth Amendment to the United States Constitution and Art. I, § 13, of the Indiana Constitution." The second raises for the first time the question whether the prosecutor's testimony to the jury regarding other crimes allegedly committed by the defendant is fundamental error requiring reversal.

In reviewing this appeal, we treat the first issue as a challenge to the sufficiency of the evidence supporting the post-conviction trial judge's conclusions that there was no denial of effective assistance of counsel, and a challenge to the conclusion of law that there was no denial of due process.

In a proceeding for post-conviction relief, the petitioner has the burden of establishing his case by a preponderance of the evidence. Ind. R.P.C. 1, § 5. In order to prevail on appeal from a denial of his petition, "appellant must satisfy the Court that the evidence as a whole was such that it leads unerringly and unmistakably to a decision in his favor; that is, one opposite to that reached by the trial court." Sotelo v. State, (1980) Ind., 408 N.E.2d 1215.

I.

The first claim has two aspects. One is that the inadequacy of counsel manifested in the failure to object contemporaneously resulted in the admission of irrelevant and prejudicial testimony. The other is that the same inadequacy manifested in the same failure resulted in the loss of a meritorious issue on appeal. Appellant also argues in his reply brief the denial of due process of law in that this Court retroactively applied the procedural waiver rule reaffirmed in Pointon v. State, (1978) Ind., 372 N.E.2d 1159, to his case, which was tried before Pointon.

Reviewing these related claims in the light outlined above, we must consider first whether the testimony adduced at the hearing on the post-conviction petition leads unerringly to the conclusion that trial counsel was ineffective.

At the post-conviction hearing appellant's former trial counsel testified that he was relying upon this Court's opinion in Lockridge v. State, (1975) 263 Ind. 678, 338 N.E.2d 275, in passing up the opportunity to make the in-trial objection. In that case, Judge Arterburn, writing for the Court said:

"(W)e do not consider this issue waived because the Appellant presented to the Court prior to trial a motion in limine which, in part, asked that the Appellant's pre-trial statements be excluded. This part of the Appellant's motion was overruled. Objection at trial would have been desirable, but the issue was so thoroughly argued and the Court's ruling was so specific that further objection may be considered fruitless." Id. at 278, 279.

The language in Lockridge logically supports trial counsel's decision at trial to withhold objecting. He cannot now be faulted for permitting his trial strategy to be guided by it, even though it ultimately turned out in the course of later appellate litigation that this Court would not be bound by it. To fault an attorney for relying on a holding of this Court would be to distort our standard of adequate legal representation. See, e. g., Crisp v. State, (1979) Ind., 394 N.E.2d 115, 118.

Trial counsel did move to suppress the prior crimes evidence. He did attempt to persuade the trial judge of the correctness of his position and did obtain a ruling by the judge upon due consideration. This effort, in and of itself, served the defense interest in...

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5 cases
  • Adams v. State
    • United States
    • Indiana Supreme Court
    • 26 Enero 1982
    ...conflict and leads unerringly to a result not reached by the trial court. Dobeski v. State, (1981) Ind., 419 N.E.2d 753; Lagenour v. State, (1980) Ind., 414 N.E.2d 295; Laird v. State, (1979) Ind., 385 N.E.2d 452. It is apparent the post-conviction judge chose to believe one set of witnesse......
  • Wilkins v. State
    • United States
    • Indiana Appellate Court
    • 28 Septiembre 1981
    ...evidence taken as a whole leads unerringly and unmistakably to a decision completely inimical to that of the trial court. Lagenour v. State (1980), Ind., 414 N.E.2d 295. Wilkins' first two points of defense counsel "error" here are that counsel failed to call alibi witnesses and that he neg......
  • Joseph v. State
    • United States
    • Indiana Supreme Court
    • 1 Octubre 1985
    ...unmistakably to a conclusion opposite that reached by the trial court. Higgason v. State, (1982) Ind., 435 N.E.2d 558; Lagenour v. State, (1980) Ind., 414 N.E.2d 295; Sotelo v. State, (1980) 273 Ind. 694, 408 N.E.2d Appellant Joseph entered a plea of guilty at an early stage in this cause w......
  • McCollum v. State, 1279S340
    • United States
    • Indiana Supreme Court
    • 31 Diciembre 1980
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