Tibbs v. State, 472A196
| Decision Date | 15 November 1973 |
| Docket Number | No. 472A196,472A196 |
| Citation | 303 N.E.2d 294,158 Ind.App. 485 |
| Parties | French Chester TIBBS, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant (petitioner below).
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee (respondent below).
This is an appeal by Petitioner-Appellant French Chester Tibbs (Tibbs) from denial of his Petition for Post-Conviction Relief pursuant to Rule P.C. 1, claiming denial of due process, incompetent counsel, and lack of a knowing and intelligent waiver of his right to trial by jury.
We affirm.
The facts and evidence supporting Tibbs' conviction are:
On July 25, 1969, Tibbs was arrested by police and charged with Robbery. 1 The next day a preliminary hearing was held after which Tibbs was incarcerated pending indictment. Tibbs neither requested nor was he provided counsel at these initial stages in the proceedings.
Tibbs was subsequently indicted and charged as a principal with the crimes of (1) Robbery, and (2) Inflicting Injury During the Commission of Robbery. On October 16, 1969, when Tibbs first appeared before the trial court, a pauper attorney (Counsel) was appointed to represent him. On the same day, Tibbs waived arraignment and entered a plea of Not Guilty to the crimes charged.
Court trial was held on November 7, 1969. During this interval of three weeks, Counsel conferred briefly with Tibbs and investigated the facts of the case by talking with Prosecution officials, police officers and State's witnesses.
At the Post-Conviction Hearing, Tibbs testified that prior to trial he had asked Counsel to contact several witnesses who were near the scene of the crime. None of these potential defense witnesses testified at the Hearing, nor did Tibbs demonstrate in what manner their testimony would have benefited his defense. 2
Counsel testified at the Hearing that he could not recall if anyone involved at the scene of the robbery, apart from the State's witnesses, were interviewed prior to trial.
At the trial Tibbs, accompanied by Counsel, waived his right to trial by jury as shown by this excerpt from the record:
At the time of this waiver, Tibbs was 20 years old, had not completed high school, and had been previously convicted of one felony and two misdemeanors.
At trial, the State presented three witnesses, each of whom testified to seeing Tibbs and others attack and rob the victim. Counsel vigorously cross-examined these witnesses in an effort to impeach their ability to observe and identify Tibbs as a participant in the crime.
Counsel then unsuccessfully moved to discharge at the close of the State's evidence on the ground that the evidence failed to prove his guilt. The defense rested without calling any witnesses.
At the Post-Conviction Hearing, Counsel testified that, to the best of his knowledge, he presented all witnesses Tibbs had told him to present.
Tibbs was found guilty by the trial court on both counts and was initially sentenced to life imprisonment. This sentence was modified by the Indiana Supreme Court in Tibbs v. State, (1970) 255 Ind. 309, 263 N.E.2d 728. Tibbs' conviction under Count 2 (Inflicting Injury) was reversed on the ground of insufficient evidence. Conviction under Count 1 (Robbery), however, was affirmed, the court holding that the evidence sustained his conviction as an accessory even though Tibbs had been charged as a principal.
Tibbs filed a Post-Conviction Relief Petition on August 12, 1971. Following the Hearing, on September 17, 1971, the trial court denied Tibbs' Petition. From this denial Tibbs appeals.
This appeal presents the following issues for our consideration:
ISSUE ONE. Did Tibbs establish at the Post-Conviction Hearing that he had not been adequately represented at trial by Counsel?
ISSUE TWO. Does the record show that Tibbs knowingly and understandingly waived his right to trial by jury?
ISSUE THREE. Did Tibbs establish that he was denied due process because the indictment charged him as a principal instead of an accessory?
As to ISSUE ONE, Tibbs contends that because Counsel was not appointed prior to arraignment, i.e., at the preliminary Hearing, Counsel did not have sufficient time (three weeks) to prepare a defense for the crimes charged. 4 In addition, Tibbs argues that Counsel did not make an adequate investigation of the case, conferred only briefly with his client, and failed to call witnesses which Tibbs allegedly requested, thus resulting in perfunctory representation.
The State responds that Tibbs failed to present any strong and convincing evidence at his hearing which would sustain his burden of proving such incompetency or lack of sufficient time to prepare a defense.
As to ISSUE TWO, Tibbs says the record fails to show a knowing and intelligent, waiver of his right to trial by jury. Specifically, that Counsel took the initiative of waiving a jury trial, and that the trial judge did not explain to him that a jury trial was a constitutional right, that he could not be convicted unless all jurors concurred on his guilt beyond a reasonable doubt, and that the trial judge, alone, would decide guilt in the absence of a jury trial. Further, that he deserved these more explict instructions because of his failure to finish high school and 'too slight' knowledge of the judicial system, and his past criminal record is not sufficient to presume his knowledge of the waiver's consequences.
The State answers that the record shows adequate and careful questioning by the trial court warranting a finding that Tibbs knowingly waived his right to a jury trial.
As to ISSUE THREE, Tibbs claims denial of due process because he was charged under an indictment which did not inform either him or Counsel that he could be tried and convicted as an accessory.
The State argues that no evidence was presented which would tend to prove that Counsel was in fact unaware of the law permitting conviction as an accessory under an indictment charging a defendant as a principal.
Tibbs raises other questions in his Brief which have been rendered moot by our consideration of these three issues or have been waived by failure to cite authority. Rule A.P. 8.3(A).
ISSUE ONE.
CONCLUSION--It is our opinion that Tibbs failed to establish at the Post-Conviction hearing that he was inadequately represented at trial by Counsel.
Haddock v. State, (1973) Ind., 298 N.E.2d 418, articulates the presumption of adequacy of trial counsel:
(Emphasis supplied). 298 N.E.2d at 420.
See also, Payne v. State, (Ind., October 4, 1973) 301 N.E.2d 514.
To overcome the presumption strong, convincing proof leading to but one factual conclusion is necessary. Sargeant v. State, (1973) Ind.App., 299 N.E.2d 219.
Each case must stand or fall on its own facts as exhibited by the record on appeal. State v. Irvin (1973), Ind., 291 N.E.2d 70; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919; Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36.
No such evidence is apparent in this record. Counsel investigated the facts by conferring with the Prosecutor's staff, officers, and State witnesses. He conferred with Tibbs and there is no indication that he refused to counsel with Tibbs when requested to do so.
Furthermore, the evidence fails to demonstrate how Tibbs' case would have been strengthened by appointment of Counsel prior to arraignment. Absent such an evidentiary showing, we cannot say as a matter of law that Tibbs' right to effective representation was compromised by Counsel having only three weeks in which to prepare for trial.
Essentially Tibbs' argument consists of charging perfunctory representation and indulging in inferences and assumptions against adequate representation, none of which are substantiated by the record.
Tibbs emphasizes that Counsel failed to call witnesses in his behalf even though requested to do so. Counsel denied such a request was made, and the trial judge apparently disbelieved Tibbs' testimony which he had a right to do.
It is just as reasonable to infer from this record that Counsel's investigation led him to believe no witnesses were available for the defense as it is to infer that witnesses should have been called. The presumption of adequacy of counsel requires us to assume that during the three week period prior to trial available to Counsel, his investigation was sufficient to prepare an adequate defense.
Counsel was not...
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