Liford v. State

• Decision Date: 30 September 1965
• Docket Number: No. 30276,30276
• Citation: 210 N.E.2d 366,247 Ind. 149
• Parties: Junior LIFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 366

210 N.E.2d 366

247 Ind. 149

Junior LIFORD, Appellant, v. STATE of Indiana, Appellee.

No. 30276.

Supreme Court of Indiana.

Sept. 30, 1965.

Dane E. Mann, Marion, for appellant.

Edwin K. Steers, Atty. Gen., Samuel R. Rosen, Deputy Atty. Gen., for appellee.

MYERS, Judge.

Appellant was charged by affidavit with committing the crime of second-degree burglary. He pleaded not guilty and was tried by jury in the Grant Superior Court. A verdict was returned against him finding him guilty as charged. He was sentenced to the Indiana State Prison for not less than two years nor more than five years. A timely motion for new trial was filed which was overruled. This appeal followed.

It appears that appellant and two other defendants by name of James Koons and Edwin Altes were all charged with unlawfully having broken and entered the building of the Meshingomesia Country Club in Marion, Indiana, with intent to commit a felony. Appellant and Edwin Altes, following their arrest, entered a plea of not guilty. Thereafter, appellant moved for a separate trial, alleging that the defendant, James Koons, had not been taken into custody and so was unavailable for trial; that defendant Altes had entered a plea of guilty to a criminal charge brought under a Federal statute; that if appellant was required to stand trial with the other two defendants his defense would be prejudiced in the eyes of the jury. This motion was granted.

At time of trial, Edwin Altes had been asked to testify on behalf of appellant. He was instructed by appellant's counsel that in so doing, Altes could incriminate himself. On the witness stand, Altes stated that during the trial he had talked with a certain detective in the hall outside the presence of counsel. After that, altes refused to testify in favor of appellant. At the close of the evidence, appellant moved for a mistrial wherein he made the following statement:

'I don't know what the conversation was about, but it must have been something about this case and for that reason the witness would not testify for us.'

The motion for mistrial was overruled with remarks by the court as follows:

'It is not shown in any way the conversation affected Mr. Altes and his desire to testify one way or the other. In fact, the motion should have been made right away, not to wait until we see how the evidence came out.'

Appellant's motion for new trial was based on this alleged irregularity, upon the court's giving General Instruction No. 7, and upon the grounds that the verdict was not sustained by sufficient evidence and was contrary to law. Appellant's assignment of errors avers manifest error in overruling the motion for new trial.

It is appellant's argument that he was prevented from having a fair trial because a witness (Altes) was 'pressured' into claiming his privilege against self-incrimination which denied appellant due process of law. He claims this was set forth in his attorney's affidavit in support of the motion for new trial which was not contradicted by counter-affidavits. He also says that the testimony of Altes supports this contention.

The affidavit filed by appellant's counsel in support of the motion for new trial, in pertinent part, is as follows:

'Comes now Dane E. Mann, who being first duly sworn upon his oath, says:

'1. That he did on the 27th day of February and thereafter represent the defendant Junior Liford, during a jury trial of the said defendant; that the said defendant was charged by affidavit, with second degree burglary.

'2. That the said defendant, Junior Liford, was found guilty and sentenced to the Indiana State Prison.

'3. That the said defendant, Junior Liford, has filed a motion for a new trial and as one of the grounds therefor alleges as follows: '(1) Irregularities in the proceeding of the court and orders of the court and abuse of discretion by whcih the defendant was prevented from having a fair trail'; the following facts are basis for said ground:

'That defendant, Junior Liford, did subpoena one Edward Altes to testify on behalf of the said defendant, Junior Liford; that the said Edward Altes is also a defendant charged with the same offense and under the same affidavit as defendant Junior Liford; that the said Edward Altes was imprisoned under Federal Authority in the Marion County Jail at Indianapolis, Indiana; that the said witness, Edward Altes, was imprisoned in said jail pending a presentence investigation of a Federal Crime to which the said witness, Edward Altes did plead guilty; that the said witness, Edward Altes, was brought to the trial of defendant, Junior Liford, in the custody of a Deputy United States Marshal; that at the trail, one Detective Sargent Spallina, an officer in charge of the investigation of the above said defendants, and a witness of the State of Indiana, testified that the three defendants, James Koons, Junior Liford and Edward Altes were involved in the crime charged by the affidavit herein and the defendants, James Koons and Edward Altes were implicated in other crimes committed within the State of Indiana; that the witness Edward Altes was kept in the custody of the Deputy United States Marshal in the hallway and in an unused courtroom of the courthouse where defendant, Junior Liford, was standing trial; that to the best of the knowledge and belief of affiant the witness, Edward Altes, did intend to testify for and on behalf of the defendant, Junior Liford, even though the testimony of the said witness, Edward Altes, might tend to incriminate him; that when called, the witness, Edward Altes refused to testify on the grounds that his testimony would tend to incriminate him; that while on the witness stand, the witness, Edward Altes stated that just prior to being called, Detective Sargent Spallina talked to him and that he did not have benefit of counsel while doing so; that Detective Sargent Spallina did talk to the witness Edward Altes without the knowledge or consent of counsel for the witness and defendant, Edward Altes; all of which prevented defendant, Junior Liford, from having a fair trial.'

The bill of exceptions containing the recital of testimony given by Edward Altes is as follows:

'Q. State your name?

'A. Edward Virgil Altes.

'Q. Are you the same Edward Altes who is charged in this affidavit with Second Degree Burglary?

'A. Yes.

'Q. Do you know Junior Liford?

'A. Yes.

'Q. How long have you known him?

'A. About twenty years.

'Q. Is he a friend of yours?

'A. Yes.

'Q. Do you understand he is charged along with you of burglarizing the Meshingomesia Country Club and taking therefrom golf equipment, clubs, and so forth?

'A. I am acquainted with that.

'Q. You also know that along with Jimmy Koons and Junior Liford you are charged with going to the County Club----

'By Mr. George Milford, Deputy Prosecuting Attorney:

'May I say something to the Court at this time?

'(Conference between the Court, Mr. Milford and Mr. Mann, attorney for Defendant.)

'Q. You also know that along with Jimmy Koons and Junior Liford you are charged with going to the Country Club?

'A. Yes, I know I was charged with it.

'Q. When were you brought up here, Mr. Altes?

'A. This afternoon.

'Q. Were you brought up here with a habeas corpus, brought here by the United States Marshal as a witness for Junior Liford?

'A. Yes, sir.

'Q. Have you talked to anybody in that regard since you arrived? Have you talked to me?

'A. Yes.

'Q. Have you talked to anybody else?

'A. I have talked to several.

'Q. Have you talked to Detective Spallina?

'A. Yes, sir.

'Q. When did you talk to him? After this trial began this afternoon?

'A. We were out in the hall somewheres.

'Q. Was counsel with you at that time?

'A. No.

'Q. I will ask you whether or not it was a fact you went into the Meshingomesia Country Club---- 'By the Court:

'At this time, the Court will inform the witness that he is jointly charged with Junior Liford and the Court cannot grant leniency in this case and therefore anything you say might be used against you.

'Q. You have conversed with me who has been appointed, as Grant County Pauper Attorney, to represent you?

'A. Yes.

'Q. I will ask you whether it is a fact you did break and enter the Meshingomesia Country Club?

'A. I refuse to answer on the grounds of incriminating me.

'By the Court:

'Let the record show the witness begs of the immunity of the Fifth Amendment.

'Q. You are claiming the Fifth Amendment?

'A. Yes.

'Q. This is--Strike the last. As Pauper Attorney, I advised you this was your privilege?

'A. Yes.

'Q. As Pauper Attorney, did I advise you definitely to do this?

'A. No, sir.

'By Mr. Mann:

'I believe that will be all.

'By Mr. George Milford, Deputy Pros. Attorney:

'No questions.

'By the Court:

'We will adjourn until 9:30 tomorrow morning.'

We cannot find from the affidavit, the testimony of Altes, or any other part of the record that there was any evidence of 'pressure' or of prejudicial irregularity. Even appellant's counsel admits he did not know what the detective and Altes discussed in their conversation. The trial court, or this court on appeal, cannot guess or speculate what was spoken between the two at that time. The affidavit of appellant's counsel required no contradiction. The testimony of Altes at the trial merely reflected a change of position on his part, at most, to which he was entitled at all times. His plea of the Fifth Amendment to the United States Constitution did not deny appellant his testimony as a witness, because he appeared at the request of appellant and did testify.

Appellant argues that an error of law occurred in giving Court's General Instruction No. 7 over objection. This instruction is as follows:

'General Instruction No. 7.

'The Court instructs you that it is the law in Indiana that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it. If...