Robbins v. State, 271S27

CourtSupreme Court of Indiana
Citation257 Ind. 273,27 Ind.Dec. 293,274 N.E.2d 255
Decision Date22 October 1971
Docket NumberNo. 271S27,271S27
PartiesJames ROBBINS, Appellant, v. STATE of Indiana, Appellee.
Harriette Bailey Conn, Public Defender, David J. Colman, Deputy Public Defender, for appellant

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal by James Robbins from an adverse decision rendered in a proceeding initiated by him pursuant to Post-Conviction Remedy Rule 1. Appellant was convicted of a crime while armed with a deadly weapon, and on September 7, 1967, he was sentenced to the Indiana State Prison for the respective terms of life imprisonment and a determinate period of fifteen years. The conviction was affirmed by this Court. See, Robbins v. State, (1968), 251 Ind. 313, 241 N.E.2d 148, 242 N.E.2d 925. Thereafter, appellant petitioned for Writ of Habeas Corpus in the United States District Court for the Northern District of Indiana, which petition was denied due to failure to exhaust existing state remedies.

In the present Petition for Post-Conviction Relief appellant alleged the following:

1. That he was denied assistance of counsel at the critical state of the pre-trial, custodial proceedings; in particular, at the one-man hospital show-up, at which time the initial identification of petitioner was made by the victim;

2. That he signed a waiver of his constitutional rights under duress, fear, and force;

3. That the conviction rested on an oral confession, secured by duress, promises, threats and fear;

4. That he was denied effective assistance of counsel, by which he was denied a fair trial.

After a hearing on the issues raised by appellant, the Honorable John T. Davis, Judge, Marion Criminal Court Division One, made the following findings of fact and conclusions of law pursuant to P.C. 1:

FINDINGS OF FACT

1. That on or about the 7th day of September, 1967, the petitioner herein was sentenced to the Indiana State Prison for the crimes of kidnapping and commission of a felony while armed with a deadly weapon, receiving, therefore, the respective terms of life imprisonment and a determinate period of fifteen years, the petitioner having theretofore been convicted by a Jury of said crimes on or about the 23rd day of August, 1967.

2. That the defendant appealed his conviction herein through the Indiana Supreme Court and that said Court affirmed the conviction or or about October 30, 1968.

3. That the defendant has failed to establish his asserted grounds for relief by a preponderance of the evidence in the following particulars:

(a) The defendant failed to prove by a preponderance of competent evidence that he was illegally identified at the time of his arrest by the victim of the crimes.

(b) The defendant failed to prove by a preponderance of competent evidence that his confession was not voluntarily given.

(c) The Court finds that the defendant's waiver of his rights was knowingly and intelligently made free of force and duress.

(d) The Court finds that the defendant was represented in this cause in a competent and able manner by competent and able counsel.

(e) The Court finds that there was no misconduct during the trial on the part of the State of Indiana.

(f) The Court finds that all of the issues raised in the petitioner's Petition for Post-Conviction Relief, except the issue of misconduct by the State of Indiana, have been previously presented to other Courts in other proceedings.

CONCLUSIONS OF LAW

1. That the law is with the State of Indiana and against the petitioner.

Appellant's Motion to Correct Errors was overruled, and the following issues have been raised on appeal:

1. That the trial court erred in finding that appellant was represented in this cause in a competent and able manner by competent and able counsel.

2. That the trial court erred in finding that all of the issues raised in the Petition for Post-Conviction Relief, except the issue of misconduct by the State of Indiana, have been previously presented to other courts in other proceedings.

In support of the contention that he was denied the effective assistance of counsel at trial, appellant draws our attention to the indictment charging him with the commission of a felony while armed with a deadly weapon. The indictment omits an element of the crime in that it fails to allege that appellant was over the age of sexteen (16) years. It is urged that the failure to file a motion to quash that part of the indictment is an error concerning a matter so basic that competent counsel would not have overlooked it.

Appellant is correct in his argument that age is an element necessary to be alleged and proved to sustain a conviction pursuant to IC 1971, 35--12--1--1 Ind.Ann.Stat. § 10--4709 (1968 Supp.). See, Watson v. State (1957), 236 Ind. 329, 140 N.E.2d 109; Goldstine v. State (1952),230 Ind. 343, 103 N.E.2d 438. However, appellant has failed to show how this oversight was prejudicial or harmful to him. At the hearing for post-conviction relief, appellant admitted that he was twenty-three (23) years of age, thus the youngest he could have been when the crime was committed was nineteen (19) years of age. Therefore, had counsel raised this issue at trial, it could have been corrected by filing a new indictment under IC 1971, 35--1--23--29 (Ind.Ann.Stat. § 9--1130 (1956 Repl.)). In any event, the failure to file a motion to quash did not deprive appellant the opportunity to assert an affirmative defense to the charge of commission of a felony while armed with a deadly weapon because no affirmative defense by reason of age existed. For similar reasons, the failure to file a motion for arrest of judgment was not harmful to appellant.

It is also contended that the failure to object to prosecution testimony relative to the one-man hospital show-up is an example of the incompetency of defense counsel. The reason for this contention is puzzling in that appellant fails to show why such testimony is inadmissible. The identification confrontation occurred on December 29, 1966. It was made clear in Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, that the right of an accused to have counsel present at a lineup applies only to lineups occurring after June 12, 1967, the date of the Stovall and United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, non-retroactive decisions. Further, there is testimony to the effect that the victim was hospitalized in critical condition, and that an immediate hospital confrontation was necessary. Thus it appears that the standards of due process applicable under Stovall to identifications made prior to the Wade decision were met here. In Stovall v. Denno, supra, Mr. Justice Brennan, for the majority, stated:

'(A) claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.' 388 U.S. at 302, 87 S.Ct. at 1972.

Appellant next argues that the failure to object to the introduction of 'mug shots' of petitioner into evidence constituted incompetency on behalf of defense counsel. Here again, however, appellant fails to show why such evidence was inadmissible. Assuming, arguendo, that it was, it does not necessarily follow that the failure to object to the introduction of such evidence constitutes incompetency. If every mistake or oversight made in the preparation of a case or at trial, perceived in the leisure of retrospection, should be considered probatory of legal incompetency, then the majority of all criminal defendants might validly assert such a claim. However, hindsight is not the test, as this Court so recognized in Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. There is presumption that counsel appointed or accepted by the court to represent the defendant is competent. Hathaway v. State (1968), 251 Ind. 374, 241 N.E.2d 240; Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611, cert. den. 393 U.S. 835, 89 S.Ct. 110, 21 L.Ed.2d 106. This presumption can be overcome only if it can be shown that what the attorney did, or did not do, made the proceedings a mockery and shocking to the conscience of the court. See, Slawek v. United States, 413 F.2d 957 (8th Cir. 1969). This Court is of the opinion that appellant has failed to overcome this presumption. There is an abundance of evidence to sustain the conviction, and this Court is unable to perceive how the failure to object to the 'mug shots' constituted an oversight of so serious a nature that it reduced the trial to a mockery, sham or a farce.

Appellant also contends that defense counsel was incompetent due to his failure to investigate the conditions under which petitioner signed the waiver of his constitutional rights. This contention is without merit. Appellant concedes that he failed to disclose this claim to defense counsel, and, in fact, disclosed it for the first time while in prison. We know of no requirement that counsel be omniscient or clairvoyant.

Appellant argues that he was denied effective assistance of counsel at a critical stage of pre-trial. Apparently, appellant is referring to the hospital identification confrontation. However, we have already determined that it was not necessary that counsel be present at that confrontation. On the initial appeal we determined that appellant knowingly signed a waiver of his constitutional rights, and that no statement made by appellant prior to the signing of the waiver was introduced into evidence. See, Robbins v. State, supra. On the initial appeal we also determined that appellant was not in any way deprived of his right to counsel up to and through his first court appearance where he waived arraignment and entered a plea of not guilty. See, Robbins v. State, supra. For the foregoing reasons we conclude that app...

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