Riner v. State

394 N.E.2d 140, 271 Ind. 578, 1979 Ind. LEXIS 721
CourtIndiana Supreme Court
DecidedSeptember 19, 1979
Docket277S146
StatusPublished
Cited by22 cases

This text of 394 N.E.2d 140 (Riner 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
Riner v. State, 394 N.E.2d 140, 271 Ind. 578, 1979 Ind. LEXIS 721 (Ind. 1979).

Opinion

PIYARNIK, Justice.

The defendant-appellant, and his uncle, Wayne Evans, were indicted for first-degree murder in the death of Edward M. Gibson, on August 10, 1970, in Hendricks County, Indiana. The cause was transferred on motion for change of venue to the Morgan Circuit Court where both defendants were tried by jury, found guilty, and sentenced to the Indiana State Prison for life. Riner was a sixteen-year-old juvenile at the time of his trial. This Court affirmed the convictions, Riner v. State, (1972) 258 Ind. 428, 281 N.E.2d 815. Appellant subsequently filed a pro se “petition for writ of habeas corpus by person in State custody” in the United States District Court, North District of Indiana, on March 29,1973, which petition was denied on April 3, 1974. On March 1, 1976, defendant filed a pro se petition for post-conviction relief and motion for change of judge. Defendant was represented by the office of the Public Defender of Indiana, and after some amendments to his post-conviction petition and extensions of time for filing briefs in this Court, four issues were presented to us for review concerning:

1. whether the defendant intelligently had waived his right to separate counsel and separate trial from his co-defendant Wayne Evans;

2. whether the defendant’s trial and appellate counsel was ineffective;

3. whether the defendant had waived the determination of the issue of whether his Sixth Amendment right to confront his accusers was violated at trial, and

4. whether the defendant received a fair and impartial hearing on his petition for post-conviction relief.

I.

Both defendant and his uncle, Wayne Evans, were represented by attorney William Erbecker at trial and on appeal of the original conviction. Attorney Er-becker was not called as a witness at the post-conviction hearing. Appellant testified at the post-conviction hearing that he was made aware of the fact that he had a right to demand or request a separate trial from Wayne Evans and had discussed it with his attorney. He decided to proceed with the joint trial and was advised by his attorney that it would be to his advantage to do so. The trial judge at the post-conviction hearing found that the defendant made an intelligent waiver of his rights to separate counsel. Defendant raised no objection about the joint trial until he filed his post-conviction motion in 1976. The trial judge is a finder of fact at a post-conviction relief hearing. In Cushman v. State, (1978) Ind., 378 N.E.2d 643, 644, we stated: “The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. Carroll v. State, (1976) Ind., 355 N.E.2d 408. His decision will be set aside only upon a showing that the evidence is without conflict and leads unerringly to a result not reached by the trial court.”

The representation of two co-defendants by one attorney is not per se evidence of ineffective representation. Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60. If there was no objection at trial to such a procedure, the defendant must show that he was actually prejudiced by the joint representation. Stoehr v. State, (1975) 263 Ind. 208, 328 N.E.2d 422. There is no error in the trial judge’s finding that the defendant had intelligently considered and waived his right to separate trial.

II.

Appellant next claims that his trial and appellate counsel was ineffective. He claims that at trial counsel failed to object to certain remarks by the prosecutor and to State’s witnesses presented. He claims that his appellate counsel, who was the same attorney as his trial counsel, failed to preserve and argue an issue on appeal. These issues were considered in appellant’s appeal as then presented by his appellate counsel. *143 Riner v. State, (1972) 258 Ind. 428, 281 N.E.2d 815. Appellant is attempting to raise the same basic issues by alleging different grounds and combining them with a claim of ineffective assistance of counsel.

The trial court found that defendant’s attorney was adequate and effective. There is a strong presumption that counsel was adequate and effective. Isolated mistakes or poor tactics and strategy do not constitute inadequate representation unless the trial was a mockery of justice. McFarland v. State, (1978) Ind., 381 N.E.2d 85. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686. The presumption of adequacy can be overcome only by strong and convincing evidence. Roberts v. State, (1977) Ind., 360 N.E.2d 825. The State points out that the record of the post-conviction hearing reveals that the original trial transcript of the cause was over eleven hundred pages. Countless objections were made for both parties represented by Mr. Erbecker. Mr. Erbecker has been a member of the Indiana State Bar for many years and has participated in countless criminal trials as a defense lawyer. He filed a 164 page brief on appeal in this case and at no point in the proceedings did the appellant object to his representation.

There was sufficient evidence to support the Court’s finding that the appellant’s representation was adequate.

III.

Appellant’s older brother, Ron Riner, was also charged with the murder of Gibson, along with appellant and Wayne Evans. Ron Riner agreed to testify for the State and was not tried with the other defendants. Ron Riner testified that he was asleep in the car at the time they stopped at the store to burglarize it and testified that Wayne Evans told him that when Evans returned to the automobile, he had asked Jack Riner, the appellant, to act as a lookout while he went into the store. Attorney Erbecker objected to this testimony as it applied to appellant Riner and the objection was sustained. Ron Riner was cross examined extensively. Wayne Evans was not called to testify about this statement. We note that even if appellant had had separate counsel, and had had a separate trial, however, there would have been no way for counsel to compel Evans to testify about the statement in question. Neither can we know what Wayne Evans’ testimony would have been in this regard.

The issue of Ronald Riner’s testimony was raised on appeal in a claim that the prosecuting attorney had allowed him to testify evasively and untruthfully to the knowledge of the prosecutor. This Court found that there were no grounds in that allegation and further found that since appellant had not made that objection during trial, he had waived other contentions as to that testimony. Riner v. State, (1972) Ind., 281 N.E.2d at 818.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. State
489 N.E.2d 594 (Indiana Court of Appeals, 1986)
Wells v. State
482 N.E.2d 786 (Indiana Court of Appeals, 1985)
Kimble v. Duckworth
583 F. Supp. 1072 (N.D. Indiana, 1984)
Ross v. State
456 N.E.2d 420 (Indiana Supreme Court, 1983)
Kimble v. State
451 N.E.2d 302 (Indiana Supreme Court, 1983)
Majors v. State
441 N.E.2d 1375 (Indiana Supreme Court, 1982)
Talley v. State
442 N.E.2d 721 (Indiana Court of Appeals, 1982)
State v. Clanton
441 N.E.2d 44 (Indiana Court of Appeals, 1982)
Owens v. State
436 N.E.2d 1122 (Indiana Supreme Court, 1982)
Cummings v. State
434 N.E.2d 90 (Indiana Supreme Court, 1982)
Robinson v. State
424 N.E.2d 119 (Indiana Supreme Court, 1981)
Rahim v. State
417 N.E.2d 343 (Indiana Supreme Court, 1981)
Cowell v. State
416 N.E.2d 839 (Indiana Supreme Court, 1981)
McGuire v. State
414 N.E.2d 294 (Indiana Supreme Court, 1980)
Price v. State
412 N.E.2d 783 (Indiana Supreme Court, 1980)
Davidovic v. State
408 N.E.2d 647 (Indiana Court of Appeals, 1980)
Ottman v. State
397 N.E.2d 273 (Indiana Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
394 N.E.2d 140, 271 Ind. 578, 1979 Ind. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riner-v-state-ind-1979.