Robertson v. State, 573S105

• Citation: 262 Ind. 562,319 N.E.2d 833
• Decision Date: 19 December 1974
• Docket Number: No. 573S105,573S105
• Parties: William T. ROBERTSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 833

319 N.E.2d 833

262 Ind. 562

William T. ROBERTSON, Appellant, v. STATE of Indiana, Appellee.

No. 573S105.

Supreme Court of Indiana.

Dec. 19, 1974.

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

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

ARTERBURN, Justice.

Defendant appeals from his conviction, after trial by a jury, for second degree murder. The basic facts concerning the homicide are that the Defendant, on the night of July 20, 1972, had an argument with his wife. She accused him of having that night been out with another woman. She identified a friend of the Defendant as the source of her information. Defendant took his rifle and some ammunition and drove to this friend's home. The friend admitted having been the source of the allegation. A scuffle ensued, and the rifle which Defendant was holding discharged. A bullet lodged in the victim's neck. He was dead on arrival at the hospital. A written confession, properly admitted into evidence, contained the admission by the Defendant that he intentionally fired the rifle.

The sole issue presented for our consideration is the question of whether or not the representation which the Defendant was afforded at his trial was adequate as a matter of law. As we have frequently reiterated, the representation afforded by a duly admitted mumber of the bar of this state is presumed to be competent. Hadock v. State, (1973) Ind., 298 N.E.2d 418, and cases cited therein. This presumption can be overcome only by a strong and convincing showing that what the attorney did or did not do at trial made a mockery of the trial and thus shocks the conscience of the reviewing court. Haddock, supra; Payne v. State, (1973) Ind., 301 N.E.2d 514; Blackburn v. State, (1973) Ind., 291 N.E.2d 686.

In this case, Defendant maintains that the incompetency of his trial counsel is shown by the failure of counsel to do three things: (1) a failure to object to cross-examination of the Defendant which elicited the information that he had been convicted previously for theft, see, Ashton v. Anderson, (1972) Ind., 279 N.E.2d 210; (2) a failure to object to the admission of pictures and testimony which showed that Defendant at the time of the incident--but not at the time of trial--had long hair and a moustache; (3) a failure to poll the jury. As to the latter failure, Defendant does not allege, let alone prove, that a poll of the jury would have produced information helpful to him in any way. Defendant implies that since he had a statutory right to poll the jury his attorney's failure to exercise that right is ipso facto incompetent representation. IC 1971, 35--1--37--5 (Burns' Ind.Stat.Ann. § 9--1811 (1956 Repl.)). There is no logic in such a position. A defendant has a constitutional right to call witnesses, but an attorney's failure to call any particular witness or any witnesses at all, is not proof of incompetent representation without further proof of harm resulting therefrom.

With regard to the admission of testimony about prior criminal convictions, Defendant had put on the stand a psychologist whose function was, in the words of Defendant's attorney, 'to tell us what kind of personality Mr. Robertson consists of.' The record does not show whether or not this testimony was solicited by the Defendant personally. In any event, the State objected, but the trial judge permitted the psychologist to proceed. The psychologist testified to the effect that Defendant was a passive sort of person, a kind of person who would not likely commit the sort of act for which he was on trial. It seems to us that under the guise of psychology Defendant had put in issue what the law calls his reputation for character, in particular the traits of belligerence and trouble-making which are the traits relevant to the crime charged. Wigmore, Evidence § 58--59 (1940). Once a defendant has put in issue his reputation for character, the prosecution may offer evidence as to his bad character. State v. Bloom, (1879) 68 Ind. 54; Fletcher v. State, (1874) 49 Ind. 124. In Indiana, this evidence of bad character may include specific acts of prior misconduct. Jordan v. State, (1953) 232 Ind. 265, 110 N.E.2d 751; Shears v. State, (1897) 147 Ind. 51, 46 N.E. 331. As has been said, 'While the law gives the defendant the option to show as a fact that his reputation reflects a life and habit incompatable with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.' Michelson v. United States, (1948) 335 U.S. 469 at 479, 69 S.Ct. 213, at 220, 93 L.Ed. 168. Further, we point out that the scope of cross-examination is within the discretion of the trial judge. Pinkston v. State, (1972) Ind., 284 N.E.2d 767; Payne v. State, (1970) 254 Ind. 100, 257 N.E.2d 818; Rariden v. State, (1961) 242 Ind. 689, 177 N.E.2d 736. Consequently, it was not an abuse of discretion for the trial judge to permit the Defendant, as a witness, to be cross-examined as to specific acts of prior misconduct. A witness may be cross-examined not only as to his own testimony on direct examination, but also as to all matters within his knowledge which are pertinent or material to the case. 98 C.J.S. Witnesses § 378 (1957). It is proper to...