Wynn v. State
| Decision Date | 10 August 1976 |
| Docket Number | No. 1075S274,1075S274 |
| Citation | 265 Ind. 133,352 N.E.2d 493 |
| Parties | Dane Eugene WYNN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Stephen Brown, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a denial of post conviction relief. The petitioner was convicted of second degree murder in April of 1964, and his conviction was affirmed by this Court. Wynn v. State, (1966) 247 Ind. 247, 214 N.E.2d 644. The petition for post conviction relief was denied, and a motion to correct errors overruled. This appeal presents the single issue of whether or not the court erred, as a matter of law, in finding that the petitioner had failed to prove his claim of incompetent and ineffective counsel.
The claim of the petitioner was supported by his testimony that his trial counsel failed to subpoena two persons whose names the petitioner had supplied, that counsel conferred with him but five or six times for a total of about one hour, failed to interview one of the State's witnesses and failed to object to improper and prejudicial remarks made by the prosecuting attorney in his closing argument.
Petitioner's trial counsel testified upon the petitioner's case in chief. His testimony concerned only his failure to object to the prosecutor's improper remarks. He acknowledged that the remarks had been made and that he was aware of their impropriety at that time but stated that he made no objection because it was his judgment that by doing so he would only add emphasis to them. The remarks in issue were to the effect that if the jury found the defendant guilty of manslaughter, rather than of murder, he would be back on the streets to kill again in eighteen months. The State offered no evidence.
At the outset, we note that the petitioner in a post conviction proceeding has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5. The judge hearing the petition weighs the evidence and the credibility of witnesses. Davis v. State, (1975) Ind., 330 N.E.2d 738. His determination will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Roberts v. State, (1975) Ind., 324 N.E.2d 265.
Minimal consultation does not necessarily show ineffective representation. Jackson v. State, (1975) Ind., 339 N.E.2d 557. Petitioner has not shown that the attorney failed to obtain the information he needed in the five or six conferences. Nor does petitioner allege that these conferences constituted the sum total of his attorney's preparation for trial.
Petitioner testified that his trial attorney told him that he had talked to one of the persons whose name was given to him by petitioner. Petitioner stated that the attorney said this persons was uncooperative and that it would do no good to subpoena him. This appears to be another instance of trial strategy.
It is unclear whether counsel interviewed the other witness. Petitioner testified that when he gave his attorney the name of this second person, he did not know where he could be located, but that the attorney...
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People v. Sullivan
...of effectiveness in Quartararo v. Fogg (supra) has no relevance to the issue presented in the instant case (see generally, Wynn v. State, 265 Ind. 133, 352 N.E.2d 493; State v. Edwards, 73 N.C.App. 599, 327 S.E.2d 16; but cf., Ex parte Williams, 548 S.W.2d 910 [Tex]; see also, Annot., Adequ......
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Caccavallo v. State
...on appeal. See, e.g., Thomas v. State, (1981) Ind., 417 N.E.2d 1124; Rinard v. State, (1979) Ind., 394 N.E.2d 160; Wynn v. State, (1976) 265 Ind. 133, 352 N.E.2d 493. A strategy that turns out to be unsuccessful does not establish ineffectiveness of counsel. Morris v. State, (1980) Ind., 40......
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Roberts v. State
...criminal history is a recognized trial tactic. Morris v. State, supra; Baker v. State (1980), Ind., 403 N.E.2d 1069; Wynn v. State (1976), 265 Ind. 133, 352 N.E.2d 493. It is also recognized that the failure of counsel to object to improper remarks by the prosecutor is not proof of incompet......
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Weaver v. State
...informed choices made by an attorney for tactical or strategic reasons. Morris v. State, (1980) Ind., 409 N.E.2d 608; Wynn v. State, (1976) 265 Ind. 133, 352 N.E.2d 493. The presumption that representation was competent and effective is supported by the record. Baker v. State, (1980) Ind., ......