Magley v. State

335 N.E.2d 811, 263 Ind. 618, 1975 Ind. LEXIS 339
CourtIndiana Supreme Court
DecidedOctober 21, 1975
Docket574S94
StatusPublished
Cited by139 cases

This text of 335 N.E.2d 811 (Magley v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magley v. State, 335 N.E.2d 811, 263 Ind. 618, 1975 Ind. LEXIS 339 (Ind. 1975).

Opinions

[620]*620DeBruler, J.

Appellant, Donald Floyd Magley, was in-dieted for First Degree Murder, Ind. Code § 35-13-4-1, being Burns § 10-3401, and Robbery while Armed with a deadly weapon, Ind. Code § 35-12-1-1, being Burns § 10-4709. In a trial by jury, appellant was found guilty of both charges. He was sentenced to life imprisonment for First Degree Murder and to a term of ten to thirty years for Robbery while Armed. On appeal, he presents three issues: (1) whether he was denied the right to effective assistance of counsel when the trial court denied his request for appointment of new counsel; (2) whether the trial court erred in admitting into evidence his out-of-court statement; and (3) whether the trial court erred in admitting into evidence four exhibits.

The evidence which supports the verdict of the jury shows that appellant and three other men met at appellant’s apartment in LaPorte on November 8, 1972, and made a plan to rob a filling station that evening. Appellant borrowed a neighbor’s car, and the men drove around for hours looking for a likely station. At 3:10 a.m., November 9th, a policeman stopped them for driving without a front headlight, and appellant showed the policeman his driver’s license. Finally, at 3:50 a.m., the men stopped at a Clark Service Station in South Bend and determined to carry out their plan. The driver, Terry Jones, told the attendant that he needed a quart of oil. When the attendant returned with the oil, appellant stepped out from the side of the service station with a shotgun. He asked the attendant to walk into the restroom, robbed him of $26.00 and his wallet, and shot him. Appellant then got back into the car, Jones put the oil in the car, and the men returned to appellant’s apartment, where they divided the money equally and destroyed the wallet, papers, and shotgun casings.

I.

Appellant contends that he was denied the effective assistance of counsel at the trial level. He raised this issue in his [621]*621motion to correct errors, and the trial judge considered it carefully and rendered a written opinion, overruling the motion on the ground that appellant was unable to point to a single instance where trial counsel had failed to defend properly during the preparation for or conduct of the trial.

Many general rules govern the disposition of this issue on appeal. Counsel is presumed to have prepared and executed his client’s defense effectively. State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d 70; Robbins v. State, (1971) 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other requirements for admission to the practice of law, but is rebuttable by strong and convincing proof. Robbins v. State, supra. In resolving the issue, a court should consider the totality of the circumstances surrounding counsel’s pre-trial preparation and the actual conduct of the trial. Lowe v. State, (1973) 260 Ind. 610, 298 N.E.2d 421; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686; Sargeant v. State, (1973) 157 Ind. App. 173, 299 N.E.2d 219. Perfunctory representation is not enough. Wilson v. State, (1943) 222 Ind. 63, 51 N.E.2d 848; Castro v. State, (1925) 196 Ind. 385, 147 N.E. 321. Counsel must have reasonable time for pre-trial preparation. Hartman v. State, (1973) 155 Ind. App. 199, 292 N.E.2d 293. Deliberate choices made by counsel for some contemplated tactical or strategic reason which turn out to be detrimental to the client’s cause do not establish ineffective representation. Henry v. Mississippi, (1965) 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Lowe v. State, supra. From August 9th to the conclusion of his trial, appellant had two lawyers appointed to represent him. One was appointed in St. Joseph County, the county in which the case originated; the other was appointed in Marshall County, the county to which the case was venued.

Appellant, while conceding his counsel’s competency, argues that he had irreconcilable conflicts with them and that, by reason of these conflicts and an absence of rapport, counsel [622]*622were rendered ineffective. Appellant first presented his complaints against his lawyers to the trial court before trial, on October 8th at the end of the pre-trial conference and on October 13th. His complaints focused on the failure of counsel to undertake adequate preparation to present appellant’s alibi defense and the failure to consult appellant before petitioning the court for permission to hire a medical expert to examine appellant. The trial court had a hearing on October 13th, determined that defense counsel was representing appellant effectively in spite of the conflicts between appellant and his counsel, and refused to appoint substitute counsel.

We find that the pre-trial ruling of the trial court, denying appellant’s request for appointment of substitute counsel, was not error. The decision of the court to retain appellant’s present counsel was supported by the fact that counsel had filed pre-trial motions for suppression of a confession, discovery, appointment of psychiatrists, and change of venue. In contrast to the circumstances of Brown v. Craven, (9th Cir. 1970) 424 F.2d 1166, upon which appellant relies, the conflict between appellant and counsel had not caused a breakdown in communications. At the time the trial court denied appellant’s request for substitute counsel, there was active give and take between appellant and counsel, and counsel’s refusal to abandon the insanity defense in favor of the alibi defense was not indicative of ineffective representation of their client.

At the trial, counsel presented only the defense of insanity. While they had filed a timely alibi notice, they called no alibi witnesses. Appellant argues that his counsel were ineffective also because they failed to properly prepare for and present an alibi defense.

The record before us does not serve to overcome the presumption that counsel adequately investigated appellant’s alibi defense. It does suggest that counsel may have waited to locate alibi witnesses until August, 1973, ten months after the crime and only two months prior to the trial. In August, [623]*623appellant’s local counsel asked appellant to prepare for him a list of proposed alibi witnesses. Sometime before September 10th, appellant sent him the list. Since the list included incomplete mailing addresses and no telephone numbers, and identified several of the witnesses only by forename or nickname, counsel contacted appellant’s family and asked their assistance in identifying and locating the witnesses. In addition, counsel sought and obtained authority from the court to hire an investigator at public expense to assist the defense. He filed an alibi notice in conformity with the statute. Appellant did not specify how each witness could support his alibi, nor did he ever identify his whereabouts at the time of the crime other than to state, in his alibi notice, that he was in LaPorte, Indiana.

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Bluebook (online)
335 N.E.2d 811, 263 Ind. 618, 1975 Ind. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magley-v-state-ind-1975.