Lindsey v. State, 30450

Decision Date16 February 1965
Docket NumberNo. 30450,30450
PartiesJames Clayton LINDSEY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Robert R. Riggle, Jeffersonville, for appellant.

Edwin K. Steers, Atty. Gen., Edgar S. Husted, Deputy Atty. Gen., for appellee.

ACHOR, Judge.

This is appeal from a decision in which the appellant's petition for writ of error coram nobis was denied in the Clark Circuit Court on May 13, 1963.

Previously, on March 2, 1961, appellant had been found guilty in said court by jury on an affidavit of two counts: Count One charging appellant with the crime of automobile banditry [Sec. 10-4710, Burns' Ind.Stat. (1956 Repl.)], for which he was sentenced for a period of 10 years, and Count Two with second degree burglary [Sec. 10-701, Burns' Ind.Stat. (1956 Repl.)], for which he was sentenced for a period of two to five years, said sentences to run concurrently.

In his petition for writ of error coram nobis, which was filed by appellant and presented pro se in the trial court, appellant asserted (1) that he was not given competent representation by court-appointed counsel in the trial of the original cause. He here further asserts that his constitutional rights were denied him with respect to said cause of action in that (2) he was denied representation by counsel in his proceedings in error coram nobis, in that the public defender refused to represent him in said cause and that notwithstanding such refusal, the trial court refused to appoint other pauper counsel to represent him in the cause.

Appellant's appeal to this court is by newly appointed counsel, procured at public expense. Under our statute it is the duty of the public defender of this state to represent all indigent prisoners who, after the expiration of their right to a timely appeal, seek redress from some illegality in the proceedings by which they are convicted. This obligation of the public defender is, however, conditioned upon the ability of the public defender to present some appealable issue. Johnson v. Dowd (1963), Ind., 193 N.E.2d 906; cert. den. (1964), 376 U.S. 965, 84 S.Ct. 1127, 11 L.Ed.2d 982; Willoughby v. State (1961), 242 Ind. 183, 167 N.E.2d 881, 242 Ind. 183, 177 N.E.2d 465; cert. den. (1963), 374 U.S. 382, 83 S.Ct. 1876, 10 L.Ed.2d 1055.

In event the public defender fails or refuses to so represent an indigent prisoner he may pro se file a petition in this court asking that such public defender be required to provide such representation or show cause for such failure or refusal. However, because of the seriousness of the allegations made by the appellant and in order to finally put at rest any further contention regarding these allegations, this court issued an order to the public defender requiring him to show cause why he has not represented the petitioner in the proceedings in error coram nobis which are now before us on appeal, and the public defender having filed such a report, we have elected to consider all the issues raised by appellant as we would have done in event of a timely appeal.

We now consider the report of the public defender together with the evidence heard at the proceedings in error coram nobis had in the trial court, to determine whether there is any merit to petitioner's contention that he was not provided with competent counsel at the time of the original trial of the case, in that such counsel failed to assert numerous errors alleged to have been committed in the course of said trial.

In support of his contention that he was not provided adequate counsel at the time of his trial, appellant advances the following arguments: (1) That the charge filed was subject to motion to quash but that appellant's court-appointed counsel failed to file such a motion. (2) That appellant was not provided counsel at the time of his arraignment, in violation of his constitutional right to be represented by counsel in all stages of the proceedings, but that counsel failed to raise this issue. (3) That the goods allegedly stolen were never produced in court and therefore its identification was not properly established. (4) That the goods allegedly stolen were seized as the result of an illegal search and seizure and, therefore, evidence thereof was not admissible. (5) That appellant furnished his lawyer with a list of witnesses who would testify as to his good moral character but that said attorney failed to produce any such witnesses in court. (6) That counsel failed to object to appellant's being sentenced on two counts, one of which was an offense included within the other.

1. Count Two of the affidavit alleged that the appellant did 'unlawfully, feloniously, and burglariously break into the building and structure known and designated as McClure's Drug Store.' It is appellant's contention that the affidavit was fatally defective in that he was not charged with breaking and entering into said building but was only charged with breaking into the building. We find no merit to this contention. The phrase 'break into' is defined by Webster's Third Unabridged International Dictionary as 'to make entry or entrance into.' And the Universal Dictionary of the English Language, edited at Oxford University, defines the words 'break into' as to 'force one's way into a * * * house, especially applicable to burglary.' Thus, to charge a man of breaking into a building is equivalent to alleging that he broke and entered into a building.

In the case of Taylor v. State (1956), 236 Ind. 415, 418, 140 N.E.2d 104, 106, this court said:

'* * * [A]n offense need not be charged in the exact language of the statute, but words which import the same meaning will be sufficient. Madison v. State, supra [234 Ind. 517, 130 N.E.2d 35]; Kistler v. State (1921), 190 Ind. 149, 152, 129 N.E. 625.'

2. Appellant did not file a transcript of the record of the arraignment as required by Rule 2-40 and therefore he has not properly presented the issue of lack of counsel at the arraignment. In any event, failure of trial counsel to raise the issue is not ipso facto evidence of court-appointed counsel's inadequacy or incompetence. At best, such failure is only evidentiary and its weight depends on the record. Appellee has supplied that record, the import of which is ambiguous. For example, apellant stated he would rather employ his own attorney but that he would have to make a phone call to borrow the money. This, he was told, he could do, but the record is silent as to his response. Next, but without reference to intervening events, if any, he entered a plea of not guilty. Such a record does not provide a basis on which to overturn the judgment of the court below, especially under circumstances where the case proceeds to trial and appellant's rights are fully adjudicated. Dobson v. State (1961), 242 Ind. 267, 269, 177 N.E.2d 395; Penn v. State (1961), 242 Ind. 359, 364, 177 N.E.2d 889, 179 N.E.2d 283; Douglas v. State (1955), 234 Ind. 621, 625, 130 N.E.2d 465. 1

Furthermore, the transcript of the arraignment demonstrates an eagerness of appellant to proceed with trial. That same eagerness may well have been the factor which influenced counsel to omit a challenge to the arraignment which, at best, would probably have produced only a further delay in getting the case to trial. Further, there being no evidence to the contrary, we must assume that appellant discussed these matters with counsel and since no objection to the tactical judgment of counsel was made, appellant is bound by that judgment and may not assert it now to impugn the competency of counsel. See: Bullard v. State (1964), Ind., 197 N.E.2d 295 (on rehearing).

3. It was not necessary that the goods allegedly stolen be produced in court as evidence. Photographs of the articles stolen by appellant were identified by the owner of the drug store which was burglarized and these photographs were introduced in evidence. It was only necessary that the goods be properly identified. Holler v. State (1941), 219 Ind. 303, 304, 305, 38 N.E.2d 242. See also: Dixon v. State (1945), 223 Ind. 521, 528, 62 N.E.2d 629.

4. It is contended that the stolen merchandise was discovered as a result of an illegal (a) search and (b) seizure and therefore that failure of counsel to move to suppress this evidence was a dereliction of duty.

(a) We consider the facts regarding the alleged illegal search in this case. After appellant was arrested by police, after detailed identification by a witness who had seen him carry the merchanise from a drug store, the officers went to the trailer sales lot where appellant had been seen. They called on appellant's sister who, with her husband, owned the lot, and told her of the burglary and of appellant's arrest. She took them to a particular trailer, the main door of which was open. They saw the stolen merchandise on a bed and on the floor of the trailer, inside the screen door. Thus, the officers discovered the stolen goods in plain view without making any opening into or entering the trailer.

The Indiana decisions have not dealt extensively with the question of what constitutes a search, but there is one definition of search which is applicable. In McCoy v. State (1960), 241 Ind. 104, 115, 170 N.E.2d 43, 48, this court said:

'* * * In the law of searches and seizures, the term 'search' implies a prying into hidden places for that which is concealed.'

The facts as set out above indicate that there was no prying and the contraband taken was not hidden. There was simply a discovery of that which was open to view. Similar cases in other jurisdictions have reached the conclusion that such a discovery does not constitute a search. People v. Easley (1957), 148 Cal.App.2d 565, 307 P.2d 10; People v. Ruiz (1956), 146 Cal.App.2d 630, 304 P.2d 175; People v. Searcy (1962), 199 Cal.App.2d 470, 18 Cal.Rptr. 779, 90 A.L.R.2d 814.

(b) Was there an illegal seizure of the contraband property? Appellant, in support of his argument that...

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  • Bruce v. State
    • United States
    • Indiana Supreme Court
    • April 19, 1978
    ...right to be secure from unreasonable searches and seizures. Dalton was subsequently distinguished by this Court in Lindsey v. State, (1965) 246 Ind. 431, 204 N.E.2d 357, where defendant's sister, who owned the trailer in which defendant lived, was held to possess authority to permit the pol......
  • Peterson v. State
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    • Indiana Supreme Court
    • December 13, 1996
    ...do not precisely employ the "plain view doctrine" of federal Fourth Amendment jurisprudence. The police in Lindsey v. State, 246 Ind. 431, 204 N.E.2d 357 (1965), discovered stolen contraband "in plain view" and the defendant challenged the discovery as an illegal search. Id. at 439, 204 N.E......
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    ...out; prying into hidden places for that which is concealed. See State v. Blackwell, 76 N. M. 445, 415 P.2d 563 (1966); Lindsey v. State, 204 N.E.2d 357 (Ind.1965); People v. McCracken, 30 Ill.2d 425, 197 N.E.2d 35 (1964); State v. Reagan, 328 S.W.2d 26 (Mo.1959).3 These classic justificatio......
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    ...term `search' implies prying into hidden places for that which is concealed." Moran, 644 N.E.2d at 540 (citing Lindsey v. State, 246 Ind. 431, 439, 204 N.E.2d 357, 362 (1965)). In finding that urinalysis testing constitutes a search under the Fourth Amendment, the United States Supreme Cour......
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