Wilkins v. State

• Decision Date: 28 September 1981
• Docket Number: No. 3-181A13,3-181A13
• Parties: Loren Earl WILKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 61

426 N.E.2d 61

Loren Earl WILKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-181A13.

Court of Appeals of Indiana, Third District.

Sept. 28, 1981.

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Carolyn M. Brawner, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

Petitioner Loren Earl Wilkins was convicted of first-degree burglary, and on March 3, 1977 he was sentenced to a prison term of not less than ten years and not more than twenty. On August 14, 1979 he filed a petition for post-conviction relief with the trial court. Following a hearing on the matter, the petition was denied and he appeals. Wilkins questions whether he was provided with incompetent trial counsel; whether the trial court committed fundamental error by giving State's Instruction No. 4 to the jury; and whether alleged prosecutorial misconduct denied him a fair trial.

Wilkins bases his claim that he was provided with incompetent counsel on three "errors." First, he argues that defense counsel failed to file a notice of alibi and thereby forfeited the right to call two alibi witnesses who were present at the trial. Second, that defense counsel did not object to remarks of the prosecutor during the State's final argument or to certain questions asked during trial regarding prior criminal activity of Wilkins. Third, that Wilkins' counsel neglected to object to the reading of State's Instruction No. 4.

In dealing with the issue of incompetent counsel, this Court begins with the presumption that the attorney for the defense has discharged his duty fully. Strong and convincing proof to the contrary is required to rebut that presumption. Huggins v. State (1980), Ind., 403 N.E.2d 332. A criminal conviction will not be charged to incompetent counsel unless it is shown that defense counsel's mistakes result in a trial that is a mockery of justice, shocking to the conscience of the reviewing court. Hendrix v. State (1981), Ind., 418 N.E.2d 1161; Herman v. State (1979), Ind., 395 N.E.2d 249. The reviewing court looks to both quantitative and qualitative factors to determine if the petitioner received adequate legal representation. Huggins, supra; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. Since this is an appeal from a denial of post-conviction relief, Wilkins must show this Court that the evidence taken as a whole leads unerringly and unmistakably to a decision completely inimical to that of the trial court. Lagenour v. State (1980), Ind., 414 N.E.2d 295.

Wilkins' first two points of defense counsel "error" here are that counsel failed to call alibi witnesses and that he neglected to object to questions and remarks of the prosecutor during trial and during the State's final argument. Defense counsel testified at the post-conviction hearing that he discarded the alibi defense only after investigation and a decision that such a defense would not be helpful to his client's cause. In addition, counsel stated that he did not object to the prosecutor's remarks regarding possible prior criminal activity of Wilkins because he did not want to make a point of the defendant's background in front of the jury. Certainly these were moves of strategy. Both this Court and the Indiana Supreme Court have repeatedly held that deliberate moves of strategy do not necessarily show incompetent counsel even though they may be criticized later or turn out to be detrimental to the defendant. See, e. g., Morris v. State (1980), Ind., 409 N.E.2d 608; Roberts v. State (1981), Ind.App., 419 N.E.2d 803. As a result, this Court holds that the trial court did not err in finding that these actions did not cause the trial to be a mockery of justice or shocking to the conscience.

Wilkins, however, further argues that his attorney was incompetent because he failed to object to State's Instruction No. 4. This particular instruction informed the members of the jury that if they believed State evidence showing Wilkins in possession of the stolen property soon after the burglary and Wilkins failed to explain that possession to their satisfaction, then an inference would be raised that Wilkins was guilty of the burglary at issue. Prior to Wilkins' trial an almost identical instruction was held to be error in Abel v. State (1975), 165 Ind.App. 664, 333 N.E.2d 848. See also, Arthur v. State (1949), 227 Ind. 493, 86 N.E.2d 698; Vaughn v. State (1939), 215 Ind. 142, 19 N.E.2d 239; Dedrick v. State (1936), 210 Ind. 259, 2 N.E.2d 409. Wilkins contends that since the reading of the instruction was error and his counsel failed to object, his counsel was incompetent, citing Smith v. State (1979), Ind., 396 N.E.2d 898.

In Smith, defense counsel did not object when his client was brought to the trial dressed in a prison uniform. This happened six months after the United States Supreme Court held that a defendant's due process rights were violated when he was required to wear prison clothes at trial. See, Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. At the post-conviction hearing, the defense attorney in Smith stated that he had intended for his client to wear street clothes in order to give a "middle-class" appearance at trial. However, when his client instead appeared at trial in prison clothing, he chose not to object because he was under the impression that his objection would be futile and only serve to attract attention to the defendant because the matter of a defendant's apparel at trial was left to the discretion of the trial judge. Smith, supra, 396 N.E.2d at 900. On appeal, the Indiana Supreme Court held that the defense attorney's action fell short of adequate legal representation:

"We do not hold that every time a defendant appears at trial in jail garb and his attorney fails to object that defendant has been denied the effective assistance of counsel. However, where, as here, it can be shown that trial counsel is incapable of carrying out his trial strategy on so fundamental a point because of ignorance of the law, that attorney has been ineffective in his assistance of the defendant." (Emphasis added.) 396 N.E.2d at 901.

The holding in Smith is easily distinguishable from the case at hand and counsel's failure to object to Instruction No. 4 did not result in incompetent representation. Here defense counsel's failure to object to the instruction clearly was not a calculated move of trial strategy and was at worst a mistake. It has been held that although one isolated mistake does not necessarily amount to competent counsel, neither does it result in a determination that counsel was incompetent. 396 N.E.2d at 900. A reviewing court must look to the totality of the facts and circumstances to find whether the accused received competent representation. Leaver v. State (1981), Ind., 414 N.E.2d 959. In this case Wilkins was provided with a vigorous defense. Wilkins' attorney investigated the facts surrounding the case and discussed matters of trial strategy with the attorney for Wilkins' co-defendant. Wilkins' counsel studied the alibi as well as other defenses and testified at the post-conviction hearing that he spent an inordinate amount of time preparing the case because it was his first criminal jury trial. At trial, defense counsel filed a motion to separate Wilkins' trial from that of his co-defendant, cross-examined State witnesses, objected to State evidence, presented a witness who exonerated Wilkins and moved for a judgment on the evidence both at the close of the State's evidence and at the close of the defendant's case. A view of the totality of the facts and circumstances in this case does not reveal that Wilkins' trial was a mockery of justice or that he was incompetently represented.

The second issue presented here is whether the reading of State's Instruction No. 4 was fundamental error. Wilkins argues that this instruction violated his due process rights on several grounds. He cites Underwood v. State (1977), Ind.App., 367 N.E.2d 4 for the proposition that this instruction was fundamental error but candidly admits that Underwood has since been modified.

This Court held in Underwood that giving an instruction very similar to the one at issue was fundamental error. A finding of fundamental error permits the reviewing court to consider the merits of an issue even though it is not properly preserved for appeal. Winston v. State (1975), 165 Ind.App. 369, 332 N.E.2d 229. On the other hand, where the giving of an instruction is not fundamental error any right to complain is waived by failure to object to the instruction at trial. Jacks v. State (1979), Ind., 394 N.E.2d 166.

The Underwood decision was modified sub silentio in Sansom; Murphy v. State (1977), 267 Ind. 33, 366 N.E.2d 1171, overruled on other grounds by Elmore et al. v. State (1978), 269 Ind. 532, 382 N.E.2d 893. In Sansom, an instruction was read to the jury which was nearly identical to the instruction at issue here. There was no majority opinion in Sansom but all five justices agreed that no error was preserved for appeal where the instruction was not objected to at trial. More recently, this Court specifically held that the portion of Underwood holding the instruction to be fundamental error was superseded by Sansom. Phillips v. State (1978), Ind.App., 377 N.E.2d 666. Consistent with this line of authority, it is apparent that reading the instruction at issue here was not fundamental error. Since Wilkins did not object to the instruction at trial, any claim of error with regard to that instruction was waived.

Wilkins alternatively suggests that the propriety of State's Instruction No. 4 is reviewable in this post-conviction proceeding pursuant to Henderson v. Kibbe (1977) 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203. In that case the Supreme Court held:

"The burden of demonstrating that an erroneous...