State v. Irvin

• Decision Date: 05 January 1973
• Docket Number: No. 971S265,971S265
• Citation: 259 Ind. 610,291 N.E.2d 70
• Parties: STATE of Indiana, Appellee, v. Jerry M. IRVIN et al., Appellants.
• Court: Indiana Supreme Court

Page 70

291 N.E.2d 70

259 Ind. 610

STATE of Indiana, Appellee, v. Jerry M. IRVIN et al., Appellants.

No. 971S265.

Supreme Court of Indiana.

Jan. 5, 1973.

Jerry N. Virgil, Stephen E. Platt, Elkhart, for appellants.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Thomas McAllister, Jerry Irvin, and Thomas Mogle, appellants (defendants below), from convictions for the unlawful possession of a narcotic drug. Appellants were arrested on October 26, 1970. They were charged by affidavit and then obtained a change of venue. They were tried by jury which returned a verdict of guilty on February 9, 1971. A motion to correct errors was filed and overruled resulting in the present appeal. Appeal came directly to this Court because it was a criminal appeal filed prior to January 1, 1972 when the new Judicial Article went into effect.

Appellants assert four allegations of error:

(1) Inadequacy of counsel;

(2) Lack of impartiality on the part of the trial judge;

(3) Error in appointing as pauper counsel the same attorney who had previously been discharged as appellants' privately retained counsel;

(4) Error in increasing appellant Irvin's sentence after he indicated his intent to appeal.

Appellants base their inadequate counsel contention on four allegations:

(1) The failure to file for a change of judge after an alleged statement by the trial judge which they claim indicated a bias on the part of the judge;

(2) The failure to interview other witnesses in the cause which they claim would have been helpful to their defense;

(3) The refusal to adequately interview appellant McAllister;

(4) Inadequate preparation of the defense prior to trial.

Appellants contend that their attorney was remiss in not moving for a change of judge after the trial judge allegedly made the following statement when speaking of the appellants:

'They're like Manson in California--they want to dictate how the lawyer should handle the case.'

Appellants claim that this statement subsequently appeared in the newspaper. There is, however, no indication in the record that this statement was ever made nor has there been any showing that the statement appeared in the newspaper. No affidavits were filed by appellants asserting this claim. Nothing appears but the bare assertion contained in appellants' brief. It is incumbent upon the appellants to present a sufficient record to perit an intelligent review of the issue. Johnson v. State (1972), Ind., 283 N.E.2d 532; Burns v. State (1970), Ind., 260 N.E.2d 559. Error alleged but not disclosed by the record is not a proper subject for review. Turner v. State (1972), Ind., 287 N.E.2d 339; Cooper v. State (1972), Ind., 284 N.E.2d 799. Since there is nothing in the record to support appellants' contention, we cannot consider it.

Appellants' second contention in support of the inadequate counsel allegation is the claim that the attorney failed to interview witnesses which would be helpful to the defense. However, appellants fail to name these witnesses or to explain in what way they would be helpful to the defense. We have here nothing more than pure conjecture as to whether any significance could be attached to this at all. Once again we have an insufficient record to permit review. Johnson, supra; Burns, supra; Turner, supra; Cooper, supra.

The third contention in support of the inadequate counsel argument is the allegation that the attorney refused to adequately interview appellant McAllister who was being held in jail pending trial. When the other two appellants asked the attorney to see McAllister a few days before trial, the attorney refused, saying he would see him the morning of the trial and speak with him before the trial commenced. However, the attorney stated in his uncontradicted affidavit that he had spoken with McAllister on a number of prior occasions. He had conferred with all three defendants on Nov. 4, 7, 12 and 13. He already had all the facts in the case and another interview with McAllister at that point would seem unnecessary.

Appellants' final contention in support of the inadequate counsel contention is the alleged lack of sufficient preparation. Adequate preparation time must be decided in light of the facts of each case. Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919; Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36. The attorney was first contacted by appellant Irvin on November 3 and conferred with Irvin on that date and thoroughly covered the factual basis of their case. On November 4, 7 and 12 the attorney conferred with the prosecuting attorney and conferred with all three appellants. He also conferred with appellants at the time of the arraignment on November 13 and discussed the facts of the defense. At that time the attorney learned there were no other witnesses which could be called in behalf of the defense. During December and January, the attorney had written correspondence and telephone calls with the appellants. He also conferred with both the prosecuting attorney and the arresting officer, and he learned of all the facts the State intended to prove. He tried to set up polygraph tests for the appellants, but the prosecutor indicated he would prosecute regardless of the results so the attorney dropped the endeavor. During January he scheduled three meeting with the appellants but in each instance they failed to show up. Prior to trial the attorney devoted eleven hours in preparation of the case. Appellants claim this was insufficient. We disagree. This case was one of simple facts and we are of the opinion that the attorney's time and method of preparation were sufficient to prepare an adequate defense.

There is a presumption that defense counsel is competent, and 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. Robbins v. State (1971) Ind., 274 N.E.2d 255. After looking at the totality of the circumstances in this case, we hold that appellants have failed to overcome this presumption. Lack of adequate counsel has not been shown in the instant case.

Appellants' second allegation that the trial judge was biased to their prejudice is based on the judge's alleged remark discussed above in connection with the issue of the attorney's failure to move for a change of judge. As noted above, there is simply no support for this allegation in the record and it is therefore not a proper subject for review. Turner, supra; Cooper, supra.

Appellants' third contention is that the trial court erred in appointing as pauper counsel the same attorney who had previously been discharged as appellants' privately retained counsel. Trial was set for February 8, 1971. Appellants' counsel withdrew from the case on January 20, 1971, at the request of appellants and due to the fact that appellants were unable to pay him. On January 26, 1971, the prosecutor requested that an order to appear be issued to appellants because appellants were then without counsel. On January 29, appellant appeared and the trial court appointed as pauper counsel the same attorney who had previously withdrawn as appellants' privately retained counsel. On February 5, the appellants appeared before the trial court and orally expressed dissatisfaction with their attorney. On February 8, 1971, the date the trial began, the appellants filed a written statement expressing dissatisfaction with their attorney. They requested to have new counsel appointed and asked for a continuance. The request was denied.

The choice of an attorney to represent a pauper defendant is wholly within the sound discretion of the trial court and can only be reviewed for abuse. State ex rel. Brown v. Thompson (1948), 226 Ind. 392, 81 N.E.2d 533; Schuble v. Youngblood (1947), 225 Ind. 169, 73 N.E.2d 478. The trial court need not appoint such counsel as the defendant may choose. Burton v. State (1964), 246 Ind. 197, 200, 202 N.E.2d 165, 204 N.E.2d 218; McDowell v. State (1947), 225 Ind. 495, 76 N.E.2d 249. The services of an attorney appointed by the court may not be forced upon a pauper defendant but if the defendant refuses to be represented by the appointed counsel, he must find some method to employ his own counsel or proceed in propria persona. Schuble v. Youngblood, supra. The defendant may not arbitrarily compel a trial court to discharge competent appointed counsel. Burton v. State, supra.

The appellants in this case did not seek a change of attorney until the time for trial was imminent. Their reasons for wanting a new attorney were essentially the same as their allegations concerning their attorney's competency discussed above. They were vague allegations without support and basically boiled down to a lack of confidence by appellants in their attorney. The attorney appointed had been appel...