Riner v. State
| Decision Date | 19 September 1979 |
| Docket Number | No. 277S146,277S146 |
| Citation | 394 N.E.2d 140,271 Ind. 578 |
| Parties | Jack RINER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Stephen W. Dillon, Former Deputy Public Defender, Indianapolis, for appellant. Theodore L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.
The defendant-appellant, and his uncle, Wayne Evans, were indicted for first-degree murder in the death of Edward M. Gibson, on August 10, 1970, in Hendricks County, Indiana. The cause was transferred on motion for change of venue to the Morgan Circuit Court where both defendants were tried by jury, found guilty, and sentenced to the Indiana State Prison for life. Riner was a sixteen-year-old juvenile at the time of his trial. This Court affirmed the convictions, Riner v. State, (1972) 258 Ind. 428, 281 N.E.2d 815. Appellant subsequently filed a pro se "petition for writ of habeas corpus by person in State custody" in the United States District Court, North District of Indiana, on March 29, 1973, which petition was denied on April 3, 1974. On March 1, 1976, defendant filed a Pro se petition for post-conviction relief and motion for change of judge. Defendant was represented by the office of the Public Defender of Indiana, and after some amendments to his post-conviction petition and extensions of time for filing briefs in this Court, four issues were presented to us for review concerning:
1. whether the defendant intelligently had waived his right to separate counsel and separate trial from his co-defendant Wayne Evans;
2. whether the defendant's trial and appellate counsel was ineffective;
3. whether the defendant had waived the determination of the issue of whether his Sixth Amendment right to confront his accusers was violated at trial, and
4. whether the defendant received a fair and impartial hearing on his petition for post-conviction relief.
Both defendant and his uncle, Wayne Evans, were represented by attorney William Erbecker at trial and on appeal of the original conviction. Attorney Erbecker was not called as a witness at the post-conviction hearing. Appellant testified at the post-conviction hearing that he was made aware of the fact that he had a right to demand or request a separate trial from Wayne Evans and had discussed it with his attorney. He decided to proceed with the joint trial and was advised by his attorney that it would be to his advantage to do so. The trial judge at the post-conviction hearing found that the defendant made an intelligent waiver of his rights to separate counsel. Defendant raised no objection about the joint trial until he filed his post-conviction motion in 1976. The trial judge is a finder of fact at a post-conviction relief hearing. In Cushman v. State, (1978) Ind., 378 N.E.2d 643, 644, we stated:
The representation of two co-defendants by one attorney is not per se evidence of ineffective representation. Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60. If there was no objection at trial to such a procedure, the defendant must show that he was actually prejudiced by the joint representation. Stoehr v. State, (1975) 263 Ind. 208, 328 N.E.2d 422. There is no error in the trial judge's finding that the defendant had intelligently considered and waived his right to separate trial.
Appellant next claims that his trial and appellate counsel was ineffective. He claims that at trial counsel failed to object to certain remarks by the prosecutor and to State's witnesses presented. He claims that his appellate counsel, who was the same attorney as his trial counsel, failed to preserve and argue an issue on appeal. These issues were considered in appellant's appeal as then presented by his appellate counsel. Riner v. State, (1972) 258 Ind. 428, 281 N.E.2d 815. Appellant is attempting to raise the same basic issues by alleging different grounds and combining them with a claim of ineffective assistance of counsel.
The trial court found that defendant's attorney was adequate and effective. There is a strong presumption that counsel was adequate and effective. Isolated mistakes or poor tactics and strategy do not constitute inadequate representation unless the trial was a mockery of justice. McFarland v. State, (1978) Ind., 381 N.E.2d 85. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686. The presumption of adequacy can be overcome only by strong and convincing evidence. Roberts v. State, (1977) Ind., 360 N.E.2d 825. The State points out that the record of the post-conviction hearing reveals that the original trial transcript of the cause was over eleven hundred pages. Countless objections were made for both parties represented by Mr. Erbecker. Mr. Erbecker has been a member of the Indiana State Bar for many years and has participated in countless criminal trials as a defense lawyer. He filed a 164 page brief on appeal in this case and at no point in the proceedings did the appellant object to his representation.
There was sufficient evidence to support the Court's finding that the appellant's representation was adequate.
Appellant's older brother, Ron Riner, was also charged with the murder of Gibson, along with appellant and Wayne Evans. Ron Riner agreed to testify for the State and was not tried with the other defendants. Ron Riner testified that he was asleep in the car at the time they stopped at the store to burglarize it and testified that Wayne Evans told him that when Evans returned to the automobile, he had asked Jack Riner, the appellant, to act as a lookout while he went into the store. Attorney Erbecker objected to this testimony as it applied to appellant Riner and the objection was sustained. Ron Riner was cross examined extensively. Wayne Evans was not called to testify about this statement. We note that even if appellant had had separate counsel, and had had a separate trial, however, there would have been no way for counsel to compel Evans to testify about the statement in question. Neither can we know what Wayne Evans' testimony would have been in this regard.
The issue of Ronald Riner's testimony was raised on appeal in a claim that the prosecuting attorney had allowed him to testify evasively and untruthfully to the knowledge of the prosecutor. This Court found that there were no grounds in that allegation and further found that since appellant had not made that objection during trial, he had waived other contentions as to that testimony. Riner v. State, (1972) Ind., 281 N.E.2d at 818.
Appellant did not raise his Sixth Amendment right to confront witnesses as an issue in regard to this same testimony until his...
To continue reading
Request your trial
-
Williams v. State
... ... As we have stated many times, the post-conviction relief process is not a substitute for direct appeal, but is a process whereby the defendant may raise issues not known or available at the time of the original trial or appeal. Phillips v. State (1982) Ind., 441 N.E.2d 201; Riner v. State (1979), 271 Ind. 578, 394 N.E.2d 140; Bradberry v. State (1977), 266 Ind. 530, 364 N.E.2d 1183. The record reveals Williams argued insufficiency of the evidence in his motion to correct error. However, his counsel did not pursue this claim upon direct appeal. Nevertheless, Williams did ... ...
-
Kimble v. Duckworth
...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, 582, 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 co......
- Norris v. State
-
Riner v. Owens
...petition was denied on September 24, 1976. The Indiana Supreme Court affirmed the denial of post-conviction relief in Riner v. State, 271 Ind. 578, 394 N.E.2d 140 (1979). On February 20, 1982, the petitioner filed his second petition for a writ of habeas corpus, in the United States Distric......