Magley v. State

Decision Date21 October 1975
Docket NumberNo. 574S94,574S94
Citation335 N.E.2d 811,263 Ind. 618
PartiesDonald Floyd MAGLEY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Kenneth M. McDermott, Plymouth, for appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Donald Floyd Magley, was indicted for First Degree Murder, IC 1971, 35--13--4--1, being Burns § 10--3401, and Robbery while Armed with a deadly weapon, IC 1971, 35--12--1--1, being Burns § 10--4709. In a trial by jury, appellant was found guilty of both charges. He was sentenced to life imprisonment for First Degree Murder and to a term of ten to thirty years for Robbery while Armed. On appeal, he presents three issues: (1) whether he was denied the right to effective assistance of counsel when the trial court denied his request for appointment of new counsel; (2) whether the trial court erred in admitting into evidence his out-of-court statement; and (3) whether the trial court erred in admitting into evidence four exhibits.

The evidence which supports the verdict of the jury shows that appellant and three other men met at appellant's apartment in LaPorte on November 8, 1972, and made a plan to rob a filling station that evening. Appellant borrowed a neighbor's car, and the men drove around for hours looking for a likely station. At 3:10 a.m., November 9th, a policeman stopped them for driving without a front headlight, and appellant showed the policeman his driver's license. Finally, at 3:50 a.m., the men stopped at a Clark Service Station in South Bend and determined to carry out their plan. The driver, Terry Jones, told the attendant that he needed a quart of oil. When the attendant returned with the oil, appellant stepped out from the side of the service station with a shotgun. He asked the attendant to walk into the restroom, robbed him of $26.00 and his wallet, and shot him. Appellant then got back into the car, Jones put the oil in the car, and the men returned to appellant's apartment, where they divided the money equally and destroyed the wallet, papers, and shotgun casings.


Appellant contends that he was denied the effective assistance of counsel at the trial level. He raised this issue in his motion to correct errors, and the trial judge considered it carefully and rendered a written opinion, overruling the motion on the ground that appellant was unable to point to a single instance where trial counsel had failed to defend properly during the preparation for or conduct of the trial.

Many general rules govern the disposition of this issue on appeal. Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other requirements for admission to the practice of law, but is rebuttable by strong and convincing proof. Robbins v. State, supra. In resolving the issue, a court should consider the totality of the circumstances surrounding counsel's pre-trial preparation and the actual conduct of the trial. Lowe v. State (1973), Ind., 298 N.E.2d 421; Blackburn v. State (1973) Ind., 291 N.E.2d 686; Sargeant v. State (1973), Ind.App., 299 N.E.2d 219. Perfunctory representation is not enough. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848; Castro v. State (1925), 196 Ind. 385, 147 N.E. 321. Counsel must have reasonable time for pre-trial preparation. Hartman v. State (1973), Ind.App., 292 N.E.2d 293. Deliberate choices made by counsel for some contemplated tactical or strategic reason which turn out to be detrimental to the client's cause do not establish ineffective representation. Henry v. Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Lowe v. State, supra. From August 9th to the conclusion of his trial, appellant had two lawyers appointed to represent him. One was appointed in St. Joseph County, the county in which the case originated; the other was appointed in Marshall County, the county to which the case was venued.

Appellant, while conceding his counsel's competency, argues that he had irreconcilable conflicts with them and that, by reason of these conflicts and an absence of rapport, counsel were rendered ineffective. Appellant first presented his complaints against his lawyers to the trial court before trial, on October 8th at the end of the pre-trial conference and on October 13th. His complaints focused on the failure of counsel to undertake adequate preparation to present appellant's alibi defense and the failure to consult appellant before petitioning the court for permission to hire a medical expert to examine appellant. The trial court had a hearing on October 13th, determined that defense counsel was representing appellant effectively in spite of the conflicts between appellant and his counsel, and refused to appoint substitute counsel.

We find that the pre-trial ruling of the trial court, denying appellant's request for appointment of substitute counsel, was not error. The decision of the court to retain appellant's present counsel was supported by the fact that counsel had filed pre-trial motions for suppression of a confession discovery, appointment of psychiatrists, and change of venue. In contrast to the circumstances of Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970), upon which appellant relies, the conflict between appellant and counsel had not caused a breakdown in communications. At the time the trial court denied appellant's request for substitute counsel, there was active give and take between appellant and counsel, and counsel's refusal to abandon the insanity defense in favor of the alibi defense was not indicative of ineffective representation of their client.

At the trial, counsel presented only the defense of insanity. While they had filed a timely alibi notice, they called no alibi witnesses. Appellant argues that his counsel were ineffective also because they failed to properly prepare for and present an alibi defense.

The record before us does not serve to overcome the presumption that counsel adequately investigated appellant's alibi defense. It does suggest that counsel may have waited to locate alibi witnesses until August, 1973, ten months after the crime and only two months prior to the trial. In August, appellant's local counsel asked appellant to prepare for him a list of proposed alibi witnesses. Sometime before September 10th, appellant sent him the list. Since the list included incomplete mailing addresses and no telephone numbers, and identified several of the witnesses only by forename or nickname, counsel contacted appellant's family and asked their assistance in identifying and locating the witnesses. In addition, counsel sought and obtained authority from the court to hire an investigator at public expense to assist the defense. He filed an alibi notice in conformity with the statute. Appellant did not specify how each witness could support his alibi, nor did he ever identify his whereabouts at the time of the crime other than to state, in his alibi notice, that he was in LaPorte, Indiana. If appellant had presented a record which established definitely the failure of counsel to investigate appellant's alibi earlier, still that failure clearly would not establish that counsel's investigation of the alibi defense was so grossly inadequate as to constitute ineffective representation.

Counsel's decision to pursue only the defense of insanity at trial likewise does not overcome the presumption of effective representation. The record does not support appellant's contention that the conflict between appellant and counsel or lack of trust dictated counsel's choice of defenses. The record indicates that counsel may have decided to depend on the insanity defense instead of the alibi defense as late as that point in the trial when the State rested its case-in-chief. While we do not know the degree to which appellant participated in the choice of trial strategy, we do know that congent reasons supported the choice and counsel appear to have made it deliberately. The State's case was very strong. Two accomplices had testified and identified appellant as committing the offenses. The jury had heard appellant's confession in which he admitted that he had participated in the robbery and had been holding the shotgun at the time it discharged and killed the victim. A State Police officer had testified that forty minutes prior to the robbery-homicide, he had stopped the car in which appellant was riding, talked to the men, and examined appellant's license. Under these circumstances, we cannot adjudge defense counsel ineffective because they produced no alibi defense. On the other hand, counsel did present witnesses who testified to appellant's being a mental patient in Norman Beatty Hospital for several years and psychiatrists who testified that appellant suffered from severe mental deficiencies. Counsel reasonably could have chosen to rely on a defense of insanity.

Appellant argues also that a court may not refused to grant a defendant new counsel in a situation where a rich man would hire new counsel. In his brief, appellant states:

'The fact that the defendant is an indigent should not and must not have a bearing with respect to his right to effective assistance of counsel. If a wealthy man can replace counsel when there has been a breakdown of trust and confidence in the relationship between the client and attorney, then so should a poor person enjoy the same prerogative.'

At the stage in which appellant requested new counsel, two judicial decisions were involved: appointment of new counsel and a continuance. We begin by noting that incompetent representation is ground for a new trial for either a rich or a poor man. We note also that the trial court may refuse to allow either the rich or the poor man to replace...

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