Shack v. State, 30730

Decision Date05 May 1965
Docket NumberNo. 30730,30730
Citation249 Ind. 60,206 N.E.2d 614
PartiesVarderman SHACK, Petitioner, v. STATE of indiana, Respondent.
CourtIndiana Supreme Court

Charles G. Castor, Indianapolis, for appellant.

John Dillon, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.

MYERS, Judge.

Appellant has filed a petition for a writ of certiorari in this court pursuant to the provisions of Supreme Court Rule 2-40A. It is based upon the following circumstances: Appellant was charged with the crime of first-degree murder in Marion County, Indiana. A jury trial was held in the Marion County Criminal Court, Division Two, on June 3, 1963, wherein appellant was represented by an attorney who had been appointed Public Defender in that court. On the 5th day of June, 1963, the jury found appellant guilty as charged and recommended the death penalty.

On July 3, 1963, a motion for new trial was filed by appellant's counsel in which it was alleged that the verdict was not sustained by sufficient evidence and was contrary to law, that there was error in the admission of certain evidence, and that error was committed in regard to the admission of certain instructions.

A petition to appeal as a pauper was filed by appellant which the court granted on August 27, 1963, and appointed Charles G. Castor, an attorney of Indianapolis, to represent appellant on his appeal.

Pursuant to the provisions of Supreme Court Rule 2-40, a petition for permission to file a belated motion for new trial was filed on November 6, 1964. Exhibit '1' attached to the petition for writ of certiorari is a copy of the proposed belated motion. Therein appellant alleges that his constitutional rights were violated in that he was not adequately represented by counsel. He claims that his counsel was incompetent, and that such incompetency was first discovered by appellant on September 7, 1964, during a conference with his newlyappointed counsel after he had been sentenced to prison. It is stated that trial counsel was incompetent because of the following:

(a) He had never represented a defendant in a capital case, and his sole jury experience consisted of one jury trial prior to appellant's trial.

(b) At the time of the alleged offense, appellant had received an injury to his throat and as a result thereof was unable to talk until approximately two weeks before his trial; that trial counsel well knew this, but failed to file a motion for continuance to enable him to adequately confer with his attorney in order to prepare for trial.

(c) At the trial, appellant requested his attorney to ask question of State's witnesses which his attorney failed to do.

(d) Appellant furnished his attorney with the names of witnesses to testify favorably in his behalf, but his attorney failed to subpoena them.

(e) His attorney was furnished the names of witnesses to testify as to appellant's character, but they were not subpoenaed, and appellant was the only witness in his behalf.

(f) Trial counsel did not spend sufficient time in preparing for trial.

(g) No instructions were tendered to the court to be given to the jury, nor was there a request for continuance in order to prepare some.

(h) The jury deliberated only thirty minutes before recommending the death penalty, which, of itself, it is claimed, shows a lack of preparation of a defense.

Appellant states that he did not confer with other attorneys, was not acquainted with the various skills which attorneys possess, was an uneducated person with only a fourth-grade education, and so at time of trial could not determine whether his counsel was competent or not.

Exhibit '1' of the petition contains an affidavit signed by trial counsel, dated October 30, 1964, in which it is stated that he was thirty-eight years old, a graduate of Indiana University Law School, Indianapolis Division, in 1956, that he started to practice law in 1957, and that his practice consisted of ninety-five per cent. civil matters and five per cent. criminal matters. It is further stated that he had been appointed Public Defender in the Marion County Criminal Court, Division Two, in 1959, for a period of eight months, but took part in no trials; that he was reappointed in 1963; that prior to the case involving appellant herein, he had participated in one criminal jury trial, being a charge of robbery, but had no experience in the preparation and trial of homicide cases. It was admitted that at the time of his appointment to represent appellant, appellant could not speak due to an injury, that he was able to talk approximately two weeks before trial, and that his trial counsel filed no motion for continuance to give him additional time to confer with appellant regarding his case.

It is further admitted that appellant furnished him with the names of witnesses to call on appellant's behalf, but that as trial counsel he could not locate them or felt they would be of no value to appellant and did not request a continuance; that he did not call any character witnesses for appellant, and that for all practical purposes, appellant's entire case was the sole testimony of appellant.

It is also stated that the jury deliberated less than one-half hour and that its verdict 'astonished' him.

It is to be further stated that prior to the time of trial, counsel devoted approximately eighteen hours to the preparation and defense of appellant; that he did not advise appellant of his previous experience in the practice of law; that he did not believe the jury would recommend the death penalty and so at no time was concerned about it.

There was a hearing on the petition for permission to file a belated motion for new trial on December 17, 1964, and Exhibit '1' was introduced in evidence. The court denied the petition and overruled a motion to reconsider. Appellant claims that since there was no evidence heard at the hearing which contradicted the allegations of Exhibit '1', the court was obliged under Supreme Court Rule 2-40 to approve the filing of the belated motion for new trial. The pertinent part of this rule provides as follows:

'Provided, however, if the moving party first obtains knowledge of an alleged ground after the time within which a motion for a new trial may be filed, such party may file a petition requesting permission to file a belated motion for a new trial, which motion shall be attached to said petition. Not more than one belated motion for a new trial in the same...

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6 cases
  • Shack v. State
    • United States
    • Indiana Supreme Court
    • October 25, 1972
  • Shelby v. Phend
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 22, 1971
    ...which is still available under new Supreme Court Rule P.C. 1. See Wright v. State, 249 N.E.2d 33 (Ind.Sup.Ct.1969); Shack v. State, 249 Ind. 60, 206 N.E.2d 614 (1967); Hayden v. State, 245 Ind. 591, 199 N.E.2d 102, 201 N.E.2d 329 (1964); McKinley v. State, 252 N.E.2d 420, 423-424 2 Appellee......
  • Shack v. State
    • United States
    • Indiana Supreme Court
    • November 14, 1967
    ...Cause No. 30467 in this Court with the matters pleaded in the petition for writ of certiorari in Cause No. 30730. See Shack v. State of Indiana (1965), Ind., 206 N.E.2d 614. After the writ of certiorari was issued, the transcript of the proceedings on the petition for permission to file the......
  • Greentree v. State, 875S193
    • United States
    • Indiana Supreme Court
    • July 6, 1976
    ...motion to correct errors was still pending. This court faced a similar situation under our old rules of procedure in Shack v. State, (1967) 249 Ind. 60, 206 N.E.2d 614. In that case, we held that, where an appeal was pending, matters raised in a belated motion for new trial should be consol......
  • Request a trial to view additional results

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