Daniels v. State , 160 Ind. App. 582 ( 1974 )

Sullivan, P.J.

— In appealing from denial of post conviction relief, Daniels asserts that his 1969 robbery conviction was erroneous in that he was not adequately represented by competent counsel. It is Daniels’ appellate position that trial counsel failed to expend adequate time and effort in investigation and preparation for trial in that his attorney consulted with him only briefly before trial. The record reflects as per Daniels’ testimony in the post conviction proceedings that his attorney spoke with him just prior to arraignment, albeit very briefly and just prior to trial. The post conviction hearing process extended over three separate hearing days between November 1972 and March 1973. At no time was Daniels’ trial attorney present to offer his testimony with respect to the extent of his trial preparation or his consultation with the client.

It is the contention of Daniels that the lack of consultation resulted in his attorney’s failure to adequately challenge allegedly improper identification of Daniels as a participant in the robbery.

In denying post conviction relief, the court below found insofar as pertinent:

“6. Petitioner has not shown by a preponderance of the evidence that counsel representing Petitioner at trial incompetently or inadequately represented him at any time during the trial or the prior proceedings.

* * *

“8. Court further finds that the defendant had an attorney at all stages of the proceedings and never informed the attorney of the matters he raises in his Petition for Post Conviction Relief.

* * *

“10. Court further finds that the evidence of the joint trial of the defendants Daniels and Cowherd and the matters contained in their appeal was decided in the cases of the State of Indiana vs. Cowherd in the Indiana Supreme Court which affirmed this Court.”

With respect to the latter findings, Daniels points out that he was not a party to the appeal of his co-defendant Cowherd and that the Supreme Court decision in that matter is not determinative of the issues herein presented.

It is readily apparent that testimony from Daniels’ trial counsel could well have enlightened the entire post-conviction process. Counsel, however, did not testify at any of the post conviction hearings despite the fact that the trial court specifically alluded to the desirability of such testimony. Although the court, in its remarks at the first hearing conducted November 6, 1972, erroneously appeared to place the burden of bringing forth such testimony upon the Public Defender, the fact remains that the Prosecutor was clearly apprised of the strong desirability of having such evidence presented from Daniels’ trial counsel.¹ Furthermore, the prosecutor had more than ample opportunity to secure such evidence since on February 23, 1973 the court granted a new trial upon Daniels’ post conviction petition and the matter was resubmitted for hearing and evidence on March 16, 1973. At that time, after the petitioner Daniels rested his case in chief, the prosecutor stated: “State has nothing to offer.” Thus, in neither of the evidentiary hearings conducted did the prosecutor offer any evidence in rebuttal of Daniels’ claim.

We cannot surmise what Daniels’ trial counsel might have said if called to testify. We cannot assume that he would controvert Daniels’ testimony with respect to the virtual absence of consultation or discussion concerning Daniels’ defense. We have access only to the self-serving, but unrebutted testimony of Daniels as to those facts.

The issue for our determination is then, whether the evidence as to the minimal consultation between Daniels and his trial counsel overcomes the presumption that counsel has adequately represented his client. It is established that such presumption can be overcome only if it be shown that what the attorney did or did not do “reduced the trial to a mockery, sham or a farce.” Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255, 258. In this respect, the post conviction petitioner bears the burden of proof by a preponderance of the evidence. Hoskins v. State (1973), 261 Ind. 291, 302 N.E.2d 499; Hughley v. State (1974), 159 Ind. App. 466, 307 N.E.2d 521.

Daniels contends that he has carried such burden and relies upon Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919, 924 as follows:

“ * * * we hold only that he (the public defender) must conduct a proper investigation of the defense as a basis on which to predicate his decision. It is in the combination of the inadequacy of the investigation and the failure to present the requested defense that we can and must find inadequate representation. Since the investigation was not sufficient, we are constrained to hold that the defense was more ‘perfunctory’ than actual.” (Emphasis supplied.)

Minimal consultation with the client does not of itself render the representation merely perfunctory. Each case must be judged upon its own facts. Payne v. State (1973), 261 Ind. 221, 301 N.E.2d 514. Here, just as in Tibbs v. State (1973), 158 Ind. App. 485, 303 N.E.2d 294, there was no post conviction evidence of any specific defense which could be interposed nor of any witnesses which could be called to exonerate the defendant. The Thomas case is therefore of no aid to the assertion of Daniels.

The sole prejudice alleged by Daniels to have been occasioned by the minimal pre-trial contact between himself and his attorney is with respect to an identification of Daniels as a participant in the robbery and more particularly as to a pre-trial line-up identification procedure at which Daniels was not represented by counsel.

We first note that the pre-trial identification procedure complained of took place the morning after Daniels’ arrest and before formal charges had been made against him. Daniels asserts that he requested that counsel be present. It is clear that the line-up took place before the formal criminal process had begun and that therefore the right to counsel had not yet attached. Kirby v. Illinois (1972), 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411; McGowan v. State (1973), 156 Ind. App. 344, 296 N.E.2d 667 (transfer denied).

More to the point, we are unable to say that the vague and unsupported allegation of Daniels as to erroneous pre-trial identification procedures, even if meritorious, would have affected the outcome of the trial. As stated in Fulks v. State (1970), 255 Ind. 81, 262 N.E.2d 651, 653, reversal is not required:

“. . . if it is clearly demonstrated that notwithstanding irregularities in pre-trial lineup there is positive in-court identification of the accused, which identification in no way depends upon observations made of the accused during the improper lineup.”

More recently in Ballard v. State (1974), Ind. App., 309 N.E.2d 817, 822, we noted:

“There is an abundance of Indiana cases holding that reversible error will not exist if a witness’s in-court identification of an accused is supportable by a factual basis which is independent of allegedly erroneous pretrial identification procedures. Sawyer v. State (1973), [260] Ind. [597], 298 N.E.2d 440; Lindsey v. State (1973), [260] Ind. [351], 295 N.E.2d 819; Hendrickson v. State (1973), [260] Ind. [401], 295 N.E.2d 810; Stephens v. State (1973), [260] Ind. [326], 295 N.E.2d 622; Cody v. State (1972), [259] Ind. [570], 290 N.E.2d 38; Emerson v. State (1972), [259] Ind. [399], 287 N.E.2d 867; Dillard v. State (1971), 251 Ind. 282, 274 N.E.2d 387; Rhodes v. State (1972), [154] Ind. App. [594], 290 N.E.2d 504.”

We thus fail to see that even had Daniels’ counsel made inquiry concerning the pre-trial line-up identification, such would have changed the outcome.

At the robbery trial itself, Daniels’ counsel cross-examined the prosecuting witness with respect to his ability under the circumstances and at the time the robbery took place to properly identify Daniels as one of the perpetrators. The witness nevertheless made such identification in positive terms.

Daniels is correct in his contention that the holding of our Supreme Court in Cowherd v. State (1970), 253 Ind. 693, 256 N.E.2d 679, which affirmed the conviction of Daniels’ compatriot in the robbery, does not preclude his assertion here since Daniels was not a party to that appeal. The Cowherd decision is nevertheless of dramatic import to Daniels’ claim since the Supreme Court therein considered the very evidence which convicted Daniels and held such to be sufficient as to Cowherd. More particularly, the court specifically noted that:

“As to the identification of appellant, the witness testified on both direct and cross-examination that he had gotten a good look at both of the men who accosted him.” 253 Ind. 693, 696.

The in-court identification of Daniels was sufficient evidence as to that element of the case to support the robbery conviction. Consultation between Daniels and his attorney with respect to that issue would have gained Daniels nothing.

Daniels offers no other suggestion of exonerating evidence known by him, which would have aided in his defense if communicated to his attorney.

The evidence adduced by Daniels at his post conviction hearings though unrebutted, does not compel an inference that more extended consultation would have produced any tenable defense or any exonerating testimony which would have changed the outcome of the trial. Such evidence does not compel a legal conclusion that the minimal contact between his attorney and himself prior to trial so prejudiced him as to require reversal of the conviction Love v. State (1974), 159 Ind. App. 270, 306 N.E.2d 142; Haddock v. State (1973), 260 Ind. 593, 298 N.E.2d 418; Sargeant v. State (1973), 157 Ind. App. 173, 299 N.E.2d 219; Hoskins v. State, supra; Tibbs v. State, supra; Ferguson v. State (1973), 157 Ind. App. 696, 301 N.E.2d 382 (guilty plea).

Daniels has thus failed to demonstrate by a preponderance of the evidence his entitlement to post conviction relief.

Accordingly the judgment is affirmed.

Buchanan, J., concurs; White, J., dissents with opinion.

1 . The exchange between the Court and the Deputy Public Defender was as follows:

“ME. FEEUND: I don’t have any other witnesses.

THE COUE'T: Don’t you think it’s your duty to bring [Daniels’ trial counsel] in here, and see if it’s true, since you’re impugning his character, his ability and everything else? Don’t you think the burden’s on the State Public Defender to bring the fellow in, who you’ve maintained didn’t do a good job? Don’t you think that’s the State Public Defender’s job to do? You’ve raised the question about every lawyer being no good. Every Petition for Post Conviction Eelief is impugning the character, and the honor, and the ability of every lawyer, who represents them. It’s getting so, no lawyer wants to represent anybody anymore, because the State Public Defender is saying that they are no good.

“THE COUET: No, there has to be a stop to that, and I think that I’m going to ask the State Public Defender, when they impugn the character of a lawyer, that they bring in the lawyer to give him a chance to defend himself.

ME. FEEUND: Your Honor, I think that rests on the prosecution. I don’t think it’s for us to bring in witnesses, who may be contrary to the petitioner. If the State wants to ...”