Whittle v. State

Citation542 N.E.2d 981
Decision Date31 August 1989
Docket NumberNo. 07S00-8703-CR-00345,07S00-8703-CR-00345
PartiesWesley N. WHITTLE, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Wesley N. Whittle, pro se.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Wesley N. Whittle, brings this direct appeal pro se following his conviction in the Brown Circuit Court of the crimes of Conspiracy to Commit Battery by Means of a Deadly Weapon and Voluntary Manslaughter. Whittle was charged and tried for conspiracy to commit murder and murder. The trial court subsequently sentenced Whittle to eight (8) years for his conviction of Conspiracy to Commit Battery by Means of a Deadly Weapon and twenty (20) years for his conviction of Manslaughter, said terms to run concurrently. He appeals pro se directly to this Court raising several issues for our review, which we restate and renumber as follows:

1. whether the trial court sufficiently inquired into the joint representation by one counsel of all five co-defendants;

2. whether trial counsel was ineffective because he represented other Iron Horsemen members who were prosecution witnesses and the five co-defendants;

3. whether trial counsel was ineffective based on other allegations of error;

4. alleged use of false testimony;

5. whether the trial court erred in not calling sua sponte a recess before the testimony of Lockhart and Bergeron;

6. whether Whittle was prejudiced by the prosecutor's solicitation of evidence pertaining to the motorcycle clubs;

7. whether Whittle was denied a fair trial because the prosecutor failed to disclose possibly exculpatory evidence;

8. alleged error in jury instructions on the elements of conspiracy to commit battery and on accomplice liability;

9. sufficiency of the evidence to sustain the conviction for conspiracy to commit battery;

10. sufficiency of the evidence to sustain the conviction for voluntary manslaughter;

11. whether it was error for the prosecutor to explain the verdict forms to the jury during final argument; and

12. whether the trial court erred in communicating with the deliberating jury in Whittle's absence.

The facts most favorable to the verdict below show that on August 16, 1985, the national president of the Iron Horsemen Motorcycle Club was beaten by rival motorcycle club members in front of the Blues' Motorcycle Club clubhouse in New Albany, Indiana. The Blues called themselves the Blues Social Club. The Blues acknowledged that the president of the Iron Horsemen had been beaten in front of the Blues' clubhouse on that date but claimed they had nothing to do with it. They stated that members of another motorcycle club called the Outlaws had done the beating. Nevertheless, the Blues feared the Iron Horsemen would blame them and seek revenge. In order to meet this expected confrontation, the Blues members brought various firearms to their clubhouse in order to protect themselves. On the night of August 17, 1985, members of the Blues were in their clubhouse, armed and waiting for the attack. Jim Cox, a Blues member, was outside the clubhouse, near the alley, apparently watching for the approach of the Iron Horsemen. On that night, Whittle and four other Iron Horsemen came to the Blues' clubhouse armed with various weapons and opened fire on the Blues. Cox remained outside, exchanging fire with them, and subsequently died from his wounds.

Several of the Iron Horsemen were also wounded from gunfire. Following a trail of blood from the shootout area, police discovered a sawed-off shotgun leaning against a house and co-defendant Sositko was found and arrested nearby. Whittle was arrested in a bloodstained van which belonged to his father and which matched the description of a van used by the Iron Horsemen at the shootout. Co-defendants Pridemore, Dorion and Mullins were all found at a hospital, suffering from gunshot wounds. Although neither Whittle nor his co-defendants testified at the trial, members of the Iron Horsemen testified that several of the Iron Horsemen members had received telephone calls from members of the Blues inviting them to come to the Blues' clubhouse to talk things over and drink some beer. This was their explanation for going there and they claimed that when Whittle and his co-defendants went to the Blues' clubhouse it was for that purpose. They claimed they did not realize until they were fired upon by the Blues that they had been "set up."

I

Whittle complains the trial court did not sufficiently inquire into the joint representation by one counsel of all five co-defendants so as to prevent a conflict of interest.

At the preliminary probable cause and bond hearing, the court advised Whittle and his co-defendants of their right to individual attorneys. The court stated:

We'll find there is probable cause and want to inform each of the Defendants, all four (4) of the Defendants present before me that you certainly have already retained counsel but each of you have the right to an attorney. You also have, if you're unable to afford an attorney one will be appointed for you at no expense to you.

Supplemental Record at 7. After jury selection the trial judge made the following inquiry:

I'm going to ask each Defendant ... you are represented by Mr. Gerry Barker. I'm going to ask you individually and collectively ... and he is going to be your Attorney throughout this thing. There is ... I assume there is no question in any of your minds about a conflict of authority ... a conflict between the fact that he represents each and every one of you ... and you are all charged with two serious crimes. If there is any question ... you can address it to me at this point. You are satisfied with the fact that Mr. Barker is representing all of you? Is that yes from everybody here. It is. And nobody is raising any question that he may have a conflict because he is representing you all? That is your desire that he continue this trial as sole Attorney for you? Is that correct? Well let the record so reflect.

Record at 767-68.

Whittle argues this was not a sufficient inquiry into possible conflicts of interest. However, a trial court need not initiate an inquiry into joint representation unless it knows or reasonably should know that a particular conflict exists. Cuyler v. Sullivan (1980), 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333, 345; Averhart v. State (1984), Ind., 470 N.E.2d 666, 681, cert. denied (1985), 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323. Whittle does not claim the trial court knew or should have known of a particular conflict with the joint representation at that time. The trial court presented Whittle with the opportunity to raise any potential conflict of interest, but no objection to joint representation was made. As Whittle was advised of his right to individual counsel and was questioned about possible conflicts of interest, his failure to request individual counsel or object to joint representation constitutes a waiver of this claim.

II

Whittle claims ineffective assistance by trial counsel because counsel represented other Iron Horsemen members who were prosecution witnesses and because he represented all five of the co-defendants. To prevail on his claim, Whittle must show that his counsel actively represented conflicting interests and establish that this adversely affected his lawyer's performance. Strickland v. Washington (1984), 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696, reh. denied (1984), 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 346-47; Aubrey v. State (1985), Ind., 478 N.E.2d 70, 72. Where there was no objection at trial, such as here, the defendant must show the joint representation resulted in actual prejudice. Aubrey, 478 N.E.2d at 72; Bean v. State (1984), Ind., 460 N.E.2d 936, 945.

Whittle claims trial counsel had a conflict of interest because, without his consent, trial counsel obtained immunity from prosecution for Iron Horsemen Richard Lockhart and David Bergeron as prosecution witnesses. Whittle's contention is not supported by any evidence except his own contention here and an affidavit he filed in his Motion to Correct Error. It is evident Whittle knew his trial counsel also represented Lockhart and Bergeron. Counsel represented Lockhart in another unrelated matter. It was admitted that Lockhart was a leader in the club and was instrumental in obtaining this lawyer to represent the defendants. One of the defendants even stated Lockhart paid the lawyer. Thus, Whittle's statement that he did not know of this relationship until the question of immunity arose at trial is not convincing.

Lockhart and Bergeron were called as State's witnesses. First Lockhart and then Bergeron refused to testify based on their Fifth Amendment right to remain silent. When the State made the offer of immunity to Lockhart, the trial court indicated he would grant use immunity and order Lockhart to testify. The only part defense counsel took in this procedure was to inquire on behalf of Lockhart whether this immunity would extend to other jurisdictions such as federal courts and other state courts. The trial judge took the position that the federal courts and other courts in this state would recognize the immunity and assured counsel this was so. The prosecutor agreed. These events also took place later when Bergeron testified. Thus, it is not accurate to say defense counsel obtained immunity for the two witnesses. It is not necessary that the defense agree to the granting of use immunity; so defense counsel had no power to control it. His effort was to assure it would extend to other jurisdictions.

Notably, Whittle made no objection to any of this at trial. Nor can he demonstrate an actual conflict of interest which adversely affected counsel's performance. Both Lockhart and Bergeron testified the...

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