Williams v. State

Decision Date26 February 1986
Docket NumberNo. 2-1284A388,2-1284A388
Citation489 N.E.2d 594
PartiesRobert WILLIAMS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, Rick Ranucci, Deputy Public Defender, Indianapolis, for appellant (petitioner below).

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee (respondent below).

SHIELDS, Judge.

Petitioner-appellant Robert Williams (Williams) was convicted of first degree burglary 1 in a jury trial. The trial judge entered a judgment of conviction and sentenced Williams to an executed indeterminate term of ten to twenty years. This court affirmed his conviction on direct appeal in Williams v. State (1981), 181 Ind.App. 526, 392 N.E.2d 817. Williams now appeals the denial of his subsequent pro se petition for post-conviction relief. The issues, restated and renumbered, are as follows:

1) Whether Williams' trial counsel was ineffective;

2) Whether Williams was denied his Sixth Amendment right to counsel at the time of his polygraph examination;

3) Whether the trial court erred in admitting pre-trial show-up identification testimony;

4) Whether the trial court erroneously failed to instruct the jury to disregard the results of his polygraph examination;

5) Whether there is sufficient evidence to sustain the conviction; and

6) Whether Williams was deprived of due process of law by the trial court's denial of his post-trial motion based on newly discovered evidence.

We affirm the denial of post-conviction relief. 2

At a post-conviction hearing the petitioner has the burden of proving his allegations by a preponderance of the evidence. Ind. Rules of Procedure, Post-Conviction Rule 1, Sec. 5; Garringer v. State (1983) Ind., 455 N.E.2d 335. Upon review of a denial of a petition for post-conviction relief, we apply the following standard:

"Petitioner has the burden of proof and stands in the shoes of one appealing from a negative judgment. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law."

Young v. State (1984) Ind., 470 N.E.2d 70, 71-72.

I.

Williams contends the post-conviction court erred in concluding his trial counsel was not ineffective. His contention is governed by the two-step test articulated by the Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and integrated into Indiana caselaw beginning with Lawrence v. State (1984) Ind., 464 N.E.2d 1291, 1294-97:

"Under the first step, or 'performance component,' the defendant must demonstrate that the alleged acts or omissions by counsel fell outside the wide range of professionally competent assistance.... If the defendant satisfies step one of the test, he then must establish the second step, or 'prejudice component,' under which the defendant will be entitled to relief only if the reviewing court determines that counsel's errors had an adverse effect upon the judgment."

Richardson v. State (1985) Ind., 476 N.E.2d 497, 501. A deficient showing on either component is fatal to a defendant's claim. 104 S.Ct. at 2069. The Strickland test is implemented with the presumption counsel rendered adequate legal assistance. 104 S.Ct. at 2066. Strong and convincing evidence is required to rebut this presumption. Mato v. State (1985) Ind., 478 N.E.2d 57; Smith v. State (1984) Ind., 465 N.E.2d 1105.

A court confronted with an ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case. In making this determination, the court must view the facts as they existed at the time of counsel's conduct and may not speculate, with the advantage of hindsight, as to what may have been the most advantageous strategy in a particular case. Strickland, 104 S.Ct. at 2065-66; Smith v. State, 465 N.E.2d at 1117. Isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective assistance of counsel. Mato v. State (1985) Ind., 478 N.E.2d 57.

A.

Williams's claim of ineffective representation is first grounded on his counsel's failure to attend Williams's polygraph examination. On June 8, 1976, Williams, his then attorney, and a deputy prosecutor signed a stipulation stating Williams agreed to take a polygraph test and that the results of the test could be used as evidence on behalf of the State. The stipulation also provided that if the test results affirmed the veracity of Williams's denial of guilt, the State would dismiss the charges. On June 16, 1976, new counsel appeared on Williams's behalf. New counsel was informed of the polygraph examination scheduled for June 24, 1976 but chose not to attend. 3

We emphasize this claim must be viewed from the perspective of the facts as they existed at the time counsel elected not to appear at the examination rather than with the advantage of hindsight. From this perspective, the record supports the post-conviction court's conclusion Williams's counsel's failure to appear at the examination did not fall outside the wide range of professional competence. Williams had requested the examination and signed the stipulation. The parties apparently agreed upon an examiner who had their confidence. A polygraph examination does not affect the examinee's state of consciousness, 4 hence counsel could legitimately expect that Williams could recall the events occurring during the examination and relate them to him. Finally, the by-product of the examination would be available for counsel's perusal, if necessary. Thus, at the point in time counsel elected not to attend, the polygraph examination reasonably appeared routine. Therefore, although we do not necessarily approve counsel's omission, neither are we prepared to hold the omission evidences incompetence as a matter of law. Thus, under the existing circumstances, the trial court's conclusion Williams's counsel's decision not to attend the examination did not fall outside the range of professionally competent assistance is not contrary to law.

B.

Williams also bases his claim of ineffective counsel upon his trial counsel's failure to assert the illegality of the polygraph examination results, based upon a claim of "skewed results," either at trial or in his motion to correct error. Ineffective representation based upon counsel's failure to object requires a showing that had a proper objection been made the trial court would have had no choice but to sustain it. Beard v. State (1981) Ind., 428 N.E.2d 772.

Officer Danberry of the Indiana State Police performed the test on the scheduled date. According to Williams, an argument arose during the course of the examination when Officer Danberry accused Williams of lying. Williams contends this emotional event skewed the examination results and rendered them invalid.

Importantly, the post-conviction relief record fails to support Williams's position. There is no evidence the alleged "argument" impermissibly "skewed" the examination results. 5 Thus, because Williams failed to establish the predicate for relief, i.e., the evidence to which his counsel failed to object was evidence which, had an objection been made, would have been properly excluded, the trial court did not err in concluding Williams's counsel was not ineffective. 6

C.

Next, Williams contends his counsel was ineffective because he did not object to the polygraph examination results on the ground the examination was conducted in violation of Williams's right to counsel. 7

The present case comes before us in the context of a post-conviction proceeding wherein the petitioner has the burden of proof. Garringer v. State (1983) Ind., 455 N.E.2d 335. Also, because this issue involves a failure to object, as did the preceding issue, Williams again had the burden of proving that had a proper objection been made, the trial court would have had no choice but to sustain it. Beard v. State (1981) Ind., 428 N.E.2d 772. This burden requires more than showing a particular objection would have had to be sustained. Rather, it requires a showing the evidence was substantively, rather than procedurally, inadmissible and excludable. 8 Here, the trial record reveals the State failed to offer evidence Williams voluntarily, knowingly and intelligently waived his right to have counsel present at the polygraph examination. Therefore, had Williams made a timely and appropriate objection, the trial court should have sustained his objection to the proffered evidence of the polygraph results. However, at that time the State would have had the opportunity to correct its oversight by offering evidence, such as a signed, written waiver, Williams did knowingly, voluntarily and intelligently waive his right to have counsel present. Thus, it cannot be said the evidence was substantively inadmissible and excludable until and unless Williams further shows the State could not have introduced evidence to satisfy its burden of showing a voluntary, intelligent and knowing waiver. 9

II.

Williams next contends the absence of counsel at the polygraph examination and the subsequent admission of the test results into evidence impinged his Sixth Amendment right to counsel. Specifically, Williams argues he was not advised of the right to assistance of counsel at the polygraph examination nor did he waive this right. 10

Because Williams's counsel did not object to the admission of the test results, the alleged error may only be considered by this court if it constitutes fundamental error. Fundamental error is an exception to the rule requiring a contemporaneous objection to preserve error for appeal. Johnson v. State (1979) 271 Ind. 145, 390 N.E.2d 1005, ...

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