Willoughby v. State

• Decision Date: 24 October 1961
• Docket Number: No. 0-599,0-599
• Citation: 242 Ind. 183,177 N.E.2d 465
• Parties: John WILLOUGHBY, Petitioner, v. STATE of Indiana, Respondent.
• Court: Indiana Supreme Court

Page 465

177 N.E.2d 465

242 Ind. 183

John WILLOUGHBY, Petitioner, v. STATE of Indiana, Respondent.

No. 0-599.

Supreme Court of Indiana.

Oct. 24, 1961.

John Willoughby, pro se.

Edwin K. Steers, Atty. Gen., for appellee.

ACHOR, Judge.

Petitioner was convicted of murder in the second degree in the Delaware Circuit Court and sentenced to life imprisonment.

This matter is before us on petition for rehearing in an original action, filed after the statutory time for appeal, in which petitioner has asked this court for a writ of mandate to compel the Delaware Circuit Court to supply petitioner with a transcript of the trial proceedings. This court heretofore denied the petition for such writ. The reason given for such denial was that since the time for appeal had expired the record at public expense must be obtained through the public defender as prescribed by statute. The statute relied upon provides:

'The public defender may order on behalf of any prisoner he represents a transcript of any court proceeding, * * * at the expense of the state, * * *.' Acts 1945, ch. 38, § 5, p. 81 [§ 13-1405, Burns' 1956 Repl.].

Nevertheless, we noted that the petitioner expressly restricted and prohibited the public defender from in any way intervening in the proceedings without his express consent. See Willoughby v. State, Ind.1960, 167 N.E.2d 881, 882.

As cause for rehearing, petitioner asserts that this court did not, in its original opinion, give consideration to the following facts, which are set out in his petition for rehearing.

1. That petitioner was denied his constitutional right to adequate representation by pauper counsel in the trial court.

2. That during the time when petitioner might have filed a timely appeal, petitioner was not provided with the transcript of the record and bill of exceptions, although he requested the same from both the public defender of the state of Indiana and the pauper counsel of Delaware County.

3. That notwithstanding the above stated circumstances, the public defender refused to represent the petitioner or to order a copy of the proceedings for him after the time had expired for a timely appeal; that the public defender explained his refusal to provide a transcript of the proceedings on the ground that his office had 'no money to purchase transcripts.'

Petitioner, in support of his allegation that he was not represented in the trial court by adequate counsel, states first, that said court-appointed trial counsel failed to use all the witnesses and present all the evidence available in support of his defense of 'self defense,' and, secondly, that said counsel failed to file a motion for new trial and to prosecute a timely appeal although said pauper counsel had agreed prior to the trial to file a motion for new trial and to prosecute an appeal in event of an adverse finding and conviction.

Although the original petition herein leaves much to be desired as to its form, and although many of the grounds for appeal are asserted for the first time in the petition for rehearing, nevertheless because of the gravity of the penalty imposed and the serious constitutional questions presented by the petition for rehearing and the possibility under the allegations made that petitioner may have made a good faith effort to obtain both a timely and a belated appeal, this court has issued an order to the public defender of the state of Indiana to show cause why he should not prosecute a delayed appeal for and on behalf of the petitioner, at public expense.

Pursuant to the above order, the public defender has filed his report with the clerk of this court, in which report he states, among other things, that he interrogated persons in the vicinity of the fatal shooting, examined the records of the court and held a personal interview with the petitioner. He states that the petitioner admits he intentionally shot the deceased, from which wounds he died; that earlier on the same day petitioner and decedent had an altercation, as a result of which petitioner was left unconscious. Thereafter petitioner borrowed the shotgun with which he killed the decedent, stating that he was going to kill him. On that evening he did, in fact, shoot and kill said decedent. The public defender reports that the shooting occurred away from the petitioner's home during a subsequent encounter. Petitioner was a person without regular employment, was an alcoholic commonly known as a 'wino.' The altercations were with regard to a woman with whom petitioner had been living. She had asked petitioner to leave her home in contemplation that decedent would thereafter move in.

Petitioner testified in the trial court, and here asserts, that the shooting was in self defense; that it occurred when the decedent was attacking him with a stick of wood. However, there are no known witnesses to the shooting other than the petitioner and the alleged stick of wood was never found. Neither petitioner nor persons living in the vicinity were able to give the public defender the names or identification of any additional witnesses or give him any other information which might have been used in his defense.

On the basis of the above stated facts, the public defender in his report concluded that the evidence was sufficient, under the well established law of this state, to prove the fact of a malicious killing and that petioner had not, to the satisfaction of the jury, sustained the burden of proving self-defense. In support of this conclusion the public defender quoted the law upon these issues, as stated in the case of Landreth v. State, 1929, 201 Ind. 691, 697, 171 N.E. 192, 194, 72 A.L.R. 891, as follows:

'Malice may be inferred from the use of a deadly weapon, which use caused the death charged in the indictment. [Citing cases.]

'The defendant in a trial under a charge for murder may introduce evidence to rebut the inference of malice, and such evidence may be in proof of self-defense. But the defense of self-defense is an ultimate fact solely for the determination of the jury from the evidence.' ¹

In his own words the public defender concluded: 'It is just a simple fact in this case that the jury did not believe the petitioner's defense that he killed Barton in self-defense, and as there was sufficient evidence to sustain the verdict, and the question of self-defense was an ultimate fact solely for the determination of the jury, and because the Supreme Court will not weigh the evidence on appeal, appeal in petitioner's case, timely or otherwise, would have been and would now be purely frivolous and without merit.'

We next consider the question as to whether petitioner should be granted a belated appeal because of inadequate representation in the trial court. For the reasons above stated there is no merit to petitioner's contention that he did not have competent representation at the trial because of the failure of counsel to produce all available evidence in petitioner's behalf. The existence of other available evidence, which would have been material to the case, does not appear.

We next consider the question as to whether petitioner was denied adequate representation because of the fact that trial counsel did not file a motion for new trial although, as petitioner asserts, before the trial, trial counsel agreed to file a motion for new trial and to prosecute an appeal in event of an adverse finding and conviction. Did failure of counsel to file a motion for new trial, under the circumstances of this case, indicate inadequacy of representation by such counsel?

There is no doubt that it is the duty of Counsel who assumes the responsibility of the defense of a criminal case to properly reserve all errors committed in the trial of the case and, in event of an adverse decision, to present these errors to the trial court for review by motion for new trial. The responsibility is borne of necessity, first because of the fact that trial counsel is the person who is most familiar with the errors, if any, committed in the course of the trial and the manner in which such errors were reserved and therefore best prepared to present such errors for review on motion for new trial; and secondly because of the fact that the 30-day period allowed for the filing of a motion for new trial ² is frequently not sufficient to permit other counsel to procure a transcript of the evidence and therefrom inform himself regarding the record made in the case and the law applicable thereto, that he can thereafter prepare a motion for new trial with the same high standard of professional representation which is already possible on the part of trial counsel.

However, in this case the public defender of the state of Indiana has attached to his report the statement of the trial counsel to the effect that although he personally believed in his client's innocence, to-wit: that the shooting had occurred in the self-defense of his client, after the verdict was returned said counsel carefully reviewed the evidence and the record in the case for error-in-fact or in law which would justify the filing of a motion for new trial; that he discussed the matter with the trial judge on several occasions; that as a result of his study of the case he concluded that he could find no meritorious cause which he could assert as grounds for a new trial and that he would not file a motion for a new trial; that he was withdrawing from the case and so advised his client, the petitioner. The propriety of this conclusion of the trial counsel is further confirmed by the findings of the public defender as reported to this court. Trial counsel was under no duty to file a motion for new trial, not grounded upon some meritorious cause. ³ Therefore, petitioner's contention that he was not adequately represented by trial counsel is not sustained by the facts before us.

The question thus presented under the above stated circumstance is this: Under what circumstance, if any, is it the...