Graham v. State

303 N.E.2d 274, 261 Ind. 330, 1973 Ind. LEXIS 463

Opinions

Hunter, J.

Footnotes

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This is an appeal arising from the denial of post conviction relief. Appellant was convicted at trial of second degree murder and sentenced to life imprisonment in the Indiana State Prison. The conviction was affirmed by this Court in Graham v. State (1971), 256 Ind. 307, 268 N. E. 2d 612. On April 24, 1972, the appellant filed a petition for post conviction relief which was heard and denied on December 27, 1972. From the overruling of his motion to correct errors, appellant instituted this appeal.

Appellant first contends that he was denied effective assistance of counsel in preparation for his original trial. Appellant is not impugning the competency of his trial attorney, but rather is alleging that his counsel was not afforded adequate time for preparation. The record discloses that the trial court appointed counsel on the morning the cause was set for trial. Appellant alleges that the court-appointed lawyer conferred with him only twenty (20) minutes prior to the trial’s commencement. The fact appearing, without more, would unhesitatingly lead this Court to the conclusion that the right to effective counsel was impaired by lack of adequate preparation where the crime charged is murder. However, our examination of the instant facts does not end here. On the day that trial counsel was appointed, appellant was given the opportunity to continue his case to provide for adequate preparation time. The following colloquy took place between the trial court and the appellant.

“THE COURT: “Alright, Sheriff, bring-out the .defendant. Alright, Mr. Graham, there are no jurors in the courtroom, your lawyer is here, Mr.' Brunt, the'prosecutor is here by Mr. Millen. Now, we have a jury here to try you -today if you want to be tried, but they’re not in the courtroom, so they don’t hear a word you’re saying. Now, your lawyer just got back into this case this morning. I don’t want him criticized. I don’t want the Supreme Court criticizing him like they criticized Mr. Nedeff in the Varderman Shack case. This time the record of this hearing will go to the Supreme Court if you want it to, you understand.”

MR. GRAHAM: “Right.”

THE COURT: “In the other case the prosecutor wasn’t bright enough to get that matter in the record. We offered this to the same man, Varderman Shack, but he wanted a trial real quick, too. Now, if you want a trial today, you’re coming in with a lawyer that’s — who is not fully prepared, you understand.” .

MR. GRAHAM: “Right.”

THE COURT: “But P don’t want you raising that question, in the event you’re convicted,, to the Supreme Court, because, I’m offering you a continuance. If you want your case continued I’ll be glad to continue it for'you.”

THE COURT: “I’m offering him a continuance. His lawyer has not had a full chance to prepare this case. I don’t want the same thing happening here that happened in the Varderman Shack case, where lawyers and people are criticized. Now, this morning you’ve been telling me all morning that you want a trial right today, and we’re going to give you a trial right today, but, it’s your responsibility, not the Court’s. Now, if you want a trial we’ll have a trial here. I told all of the jurors to come back at 2:00 o’clock this afternoon, or you can have a continuance. Take your choice. Did you hear what I said to him, Mr. Millen?”

MR. MILLEN: “Yes,-Your Honor.”

THE COURT: “Is it loud enough?”

MR. MILLEN: “I heard it very clearly, Judge.”

THE COURT: “What’s your name?”

DEP. SHERIFF EARLY REID: “Early Reid.”

THE COURT: “Did you hear what I told him?”

DEP. SHERIFF REID: “Yes, sir.”

THE COURT: “That he could have a continuance.”

DEP. SHERIFF REID: “Yes, sir.”

MR. MILLEN: “Might observe the defendant’s only standing about three feet away from the Court.”

THE COURT: “Well, his wife’s here and his father’s here. Is that his fathér or his father-in-law.?” .

MR. GRAHAM: “We’ll go to trial today.”

THE COURT: “Did you hear what I said to you, about not complaining about it later?”

MR. GRAHAM: “That’s right.”

THE COURT: “Did you hear me?

MR. GRAHAM: “That’s right.”

THE COURT: “If this c’ase should turn out — you know, you never can tell what twelve people will do on a jury — if this case should turn out the way you don’t want it, I don’t want you raising the question .or saying that you weren’t prepared, or that you did not understand. Have you understood everything I’ve said to you this morning ?”

MR. GRAHAM: “Right.”

THE COURT: “Wife, have you understood everything?”

MRS. GRAHAM: “I have.”

THE COURT: “And, who’s this gentleman?”

DEFT’S FATHER: “His father.”

THE COURT: “Father, have you heard what I said? What’s the father’s name ?”

MR. WILLIE GRAHAM: “Willie Graham.”

THE COURT: “Alright, Mrs. Court Reporter, show this. Lawyer Barton withdraws appearance for the defendant. Court re-instates Richard Brunt as attorney for the defendant. Court informs the defendant that he may have a continuance if he so desires, and the defendant, in the presence of his attorney, Richard Brunt and Deputy Prosecutor Millen, now informs the Court he desires a trial this day and will not raise the question of incompetency of . counsel by reason of the desire of the defendant for a trial today. Correct?”

MR. GRAHAM: “Right.”

THE COURT: “Did you understand those big words?”

MR. GRAHAM: “Right.”

THE COURT: “The reason I’m saying this to you, we had another case like this, a couple or three or four years ago, where a fellow wanted a trial today, you understand, and the jury brought in a verdict he didn’t like, so, then, he got himself another lawyer and they raised the question in the Supreme Court that the lawyer only spent eighteen hours trying to get the case — you know, studying the case. Now, your lawyer here hasn’t had eighteen hours time to prepare this case even, you understand.”

MR. GRAHAM: “Right.”

THE COURT: “And, I want you to know it’s your responsibility. You’re the person that wants, the trial. I’ve said it to you, maybe, four or five times today, haven’t I?”

MR. GRAHAM: “Right, sir.”

THE COURT: “I’ve offered you a continuance four or five times today, haven’t I ?”

MR. GRAHAM: “Right.”

THE COURE: “You still want to go to trial today?”

MR. GRAHAM: “Right.”

THE COURT: “Because I don't think he should go to trial so quick, but, since he insists on it, I’m going to send him to trial.”

MR. GRAHAM: “Well, Your Honor, I won’t be able to get out on bond, anyway, so I don’t want a continuance.”

THE COURT: “That's up to you. Do you want a trial today ?

MR. GRAHAM: “Right.”

THE COURT: “You’ll have it.”

MR. GRAHAM: “Thank you.”

Contrary to appellant’s contention, he was not “forced to trial” with inadequate representation. The trial court gave the appellant more than ample opportunity to prepare for his defense through a continuance of the cause. The court repeatedly explained the appellant’s right to postpone the trial in order to allow counsel to better assist him. Nevertheless, the appellant insisted upon an immediate trial.

The State argues that the appellant waived his right to adequate time for trial preparation by insisting upon an immediate trial on November 17, 1969. As we have previously stated, waiver is the voluntary relinquishment of a known right. Langley v. State (1971), 256 Ind. 199, 267 N. E. 2d 538. Finding waiver of constitutional rights is not to be lightly undertaken. However, on the facts of this case, we agree with the State that appellant did waive his right to adequate time for trial preparation. Appellant was fully apprised of the possible consequences of rushing into trial. He responded affirmatively when queried as to whether he understood the choice he had made.

Appellant is also alleging that he was denied due process of law in that he was convicted upon perjured testimony. He contends that if certain taxicab records were produced, they would show that one of the State’s witnesses was lying at trial. Appellant’s contention amounts to a belated attempt to introduce evidence known to him at his earlier trial in order to controvert evidence which convicted him. Collaterally, the appellant attacks the character of the same witness, alleging, inter alia, that she is a heavy drinker. It is apparent that the appellant is not raising newly discovered evidence, but is instead attempting to re-argue the sufficiency of the evidence which convicted him. The sufficiency of the evidence was fully reviewed by this Court on the previous direct appeal. Graham v. State, supra. Post conviction relief is not a substitute for direct appeal. PC. 1 § 1 (b).

Finding no error in the post conviction relief hearing, the judgment of the trial court is hereby affirmed.

Arterburn, C.J., Givan and Prentice, JJ., concur; DeBruler, J., dissents with opinion.

This case was assigned to this office on September 21, 1973.