Hudson v. State , 268 Ind. 310 ( 1978 )

Pivarnik, J.

Appellant waived trial by jury and was tried by the court. After his conviction of inflicting an injury in the perpetration of robbery on May 8, 1967, in Lake County Superior Court, appellant Hudson was sentenced to life imprisonment in the Indiana State Prison. Appellant was granted permission to file a belated motion to correct errors and belated appeal. His motion to correct errors was denied by the trial court on May 6, 1977.

The record shows that on January 8, 1967, Joe Davis was beaten and robbed of $10.50 in the doorway of his apartment by co-defendant Edwards and another person. On January 21, 1967, after questioning by the Gary Police Department, appellant Hudson signed a statement waiving his rights and also signed a written confession. Although appellant subsequently denied any participation in the crime, according to his written confession appellant and co-defendant Edwards followed Davis to his apartment. As Davis opened the door, appellant grabbed and held Davis while the co-defendant beat him. At the close of the evidence, co-defendant Edwards changed his plea to guilty and, after questioning by the court, stated that appellant Hudson was present during the commission of the crime. Appellant Hudson did not change his plea.

Appellant argues two errors in the proceedings below: (1) that the state failed to present adequate and sufficient credible evidence upon which to warrant a conviction, and; (2) that the court’s appointment of one attorney to represent both appellant and the co-defendant created a severe conflict of interest which denied appellant his Sixth Amendment right to effective assistance of counsel.

I.

With regard to evidence linking appellant to participation in the crime committed, the record shows that: (1) prior to trial, appellant signed a written confession detailing his participation in the crime committed; (2) the co-defendant testified that appellant was present during the criminal activity, and; (3) the victim testified that the co-defendant and another person beat and robbed him. The victim’s sole means of identifying the appellant as the other participant was that he was about the same size as one of his assailants.

Appellant argues the trier of fact should not have given any weight to his signed extra-judicial confession and, absent the confession, the evidence presented was insufficient to support his conviction.

In order for an extra-judicial confession to be admitted at trial, corroborating evidence of the corpus delicti must be introduced. Wright v. State, (1977) 266 Ind. 327, 363 N.E.2d 1221. To establish the corpus delicti, independent evidence must be presented showing the occurrence of the specific kind of injury and that someone’s criminal act was the cause of the injury. For the preliminary purpose of determining the admissibility of a confession, the corpus delicti need not be proven beyond a reasonable doubt and may be established by circumstantial evidence. Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712. In the case at hand, the evidence presented sufficiently established that Joe Davis was beaten and robbed, thereby establishing the necessary corroborating evidence of the corpus delicti for admission of appellant’s confession.

Once a confession is admitted, it is direct evidence of guilt of the criminal activity in question. Hardin v. State, (1964) 246 Ind. 23, 201 N.E.2d 333. It is to be weighed along with every other item of evidence in determining whether the defendant was the agent of the crime. Cambron, supra. Determining the weight assigned to each item of evidence and the logical inferences to be drawn therefrom is the function of the trier of fact. LeFlore v. State, (1972) 258 Ind. 458, 281 N.E.2d 876. When reviewing the sufficiency of the evidence, this court will not judge the credibility of witnesses nor weigh the evidence. We will look only at the evidence most favorable to the state and the reasonable inferences to be drawn therefrom. A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Matthew v. State, (1975) 263 Ind. 672, 337 N.E.2d 821.

Here, appellant’s confession was corroborated by sufficient evidence establishing the corpus delicti. It was therefore properly considered as evidence of appellant’s guilt. This confession along with other evidence adduced at trial formed a sufficient basis to find appellant guilty of infliction of the injury in the perpetration of robbery.

II.

Appellant next argues the court’s appointment of one attorney to represent both appellant and co-defendant at trial created a conflict of interest which violated appellant’s right to effective assistance of counsel.

The assistance of counsel guaranteed by the Sixth Amendment contemplates that it be unimpaired by court ordered representation requiring one attorney to simultaneously represent parties with conflicting interests. Glasser v. United States, (1941) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. However, the fact that one attorney is appointed to represent co-defendants does not establish either that his efforts were ineffective or that the defendant lacked undivided assistance of counsel. United States v. Langston, 194 F. Supp. 891 (W.D.Pa. 1971). We have consistently held that there is a strong presumption that counsel has competently discharged his duties. This presumption is overcome only by a showing that his actions were a mockery of justice, shocking to the conscience of the court. Meyers v. State, (1975) 252 Ind. 613, 321 N.E.2d 201; Haddock v. State, (1973) 260 Ind. 593, 298 N.E.2d 418.

Here, there is no indication that appellant’s attorney incompetenly discharged his duties. Appellant and co-defendant Edwards neither objected to representation by the same attorney, nor was there any suggestion that either was dissatisfied with counsel’s efforts. The fact that they had differing statements as to what transpired does not establish a conflict of interest. The differences in their statements were on details only, and did not basically change the theory of the event. The parties were not in the position of blaming each other to absolve themselves. Edwards’ statement of the event was similar to appellant’s signed confession. In addition, appellant’s conviction was based on his written confession and not on the co-defendant’s testimony. We, therefore, hold that appellant was not denied his constitutional right to effective assistance of counsel when the court appointed one attorney to represent both appellant and co-defendant.

The judgment of the trial court is affirmed.

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