State v. Irvin, No. 971S265

Docket NºNo. 971S265
Citation259 Ind. 610, 291 N.E.2d 70
Case DateJanuary 05, 1973
CourtSupreme Court of Indiana

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.

[259 Ind. 611]

Page 72

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 [259 Ind. 612] 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[259 Ind. 613] 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.

Page 73

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. [259 Ind. 614] 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...

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41 practice notes
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1975
    ...of this issue on appeal. Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other requir......
  • Adams v. State, No. 580S129
    • United States
    • Indiana Supreme Court of Indiana
    • January 26, 1982
    ...counsel is on the defendant. "Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other r......
  • Carter v. State, No. 1184S457
    • United States
    • Indiana Supreme Court of Indiana
    • August 25, 1987
    ...449 N.E.2d 1068. Furthermore, a defendant may not arbitrarily compel a trial court to discharge competent counsel. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70. The trial court properly denied each motion for appointment of new counsel because Carter failed to provide even a modicum o......
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...review of this issue constitutes a waiver of the claimed error. Holmes v. State, (1980) Ind., 398 N.E.2d 1279; State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d Defendant maintains the trial court erred when it refused to give various final instructions tendered by him. Those instructions ref......
  • Request a trial to view additional results
41 cases
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • October 21, 1975
    ...of this issue on appeal. Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other requir......
  • Adams v. State, No. 580S129
    • United States
    • Indiana Supreme Court of Indiana
    • January 26, 1982
    ...counsel is on the defendant. "Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other r......
  • Carter v. State, No. 1184S457
    • United States
    • Indiana Supreme Court of Indiana
    • August 25, 1987
    ...449 N.E.2d 1068. Furthermore, a defendant may not arbitrarily compel a trial court to discharge competent counsel. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70. The trial court properly denied each motion for appointment of new counsel because Carter failed to provide even a modicum o......
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...review of this issue constitutes a waiver of the claimed error. Holmes v. State, (1980) Ind., 398 N.E.2d 1279; State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d Defendant maintains the trial court erred when it refused to give various final instructions tendered by him. Those instructions ref......
  • Request a trial to view additional results

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