Schmittler v. State , 228 Ind. 450 ( 1950 )

DISSENTING OPINION I agree with the dissent of Emmert, C.J.

The majority opinion is based wholly upon an erroneous statement of law appearing in the opinion, thus: "As to whether the record reveals that appellant was not adequately represented, it would appear to us that the appellant was guilty as charged. He does not assert otherwise." This assumption of guilt by a court is, of course, contrary to the law of Indiana, which provides: "A defendant is presumed to be innocent until the contrary is proved." Section 9-1806, Burns' 1942 Replacement. Ewbank's Indiana Criminal Law, §§ 584, 585, 586 (2d Ed.). This statute and rule of law is but a partial implementation of the American idea of the personal dignity, immunity, safety and rights belonging to every individual as against any one who may assail them anywhere, anytime, even including the state and federal governments. Protection of these rights is guaranteed to every individual by both the state and federal Constitutions. With the exception of the majority opinion in this case neither the courts of this or any of our sister states have announced a doctrine of the assumption of guilt of a defendant by the courts, so far as I can find; neither have our federal courts or the United States Supreme Court announced such doctrine. On the contrary all have announced the distinctly American idea that "a defendant is presumed to be innocent until the contrary is proven." This doctrine must continue to be the controlling law in Indiana so long as we remain a Republic. In this situation the law that governs this court is well stated by Swaim, J. in Kuhn v. State (1944), 222 Ind. 179, 193,52 N.E.2d 491, thus:

". . . In the case of the defendant pleading guilty he has had no trial. By his motion to vacate the judgment of conviction and withdraw his plea he usually charges that he has been denied one or more of his constitutional rights. It is the duty of the trial court and of this court to see to it that those constitutional rights are not improperly denied to a defendant charged with crime." (My italics).

This is the law that must govern us in deciding the instant case, unless we now abandon the American idea of individual liberty, adopt the totalitarian philosophy and assume "that the appellant was guilty as charged" as stated in the majority opinion. Of course, if we now adopt the latter philosophy we can disregard all constitutional rights and decide the case agreeable with our whim of the day. I cannot follow this plan.

It seems to me that the entire majority opinion from beginning to end is besmirched by the erroneous doctrine noted. It admits that appellant — a boy of twenty-one years — was badly manhandled by state policemen for three days from March 29 to April 1, 1949 during which time he was arrested without warrant and kept under complete control of the police both day and night without placing any charge against him. As soon as arrested he was whisked out of Posey County — where it is alleged the offense was committed — over four counties to a state police station sixty miles away where he was finger-printed, surrounded and questioned by armed state policemen, as a result of which a typewritten confession was procured. He was denied access to an attorney and to his parents, and was taken, (not "returned" as stated in the majority opinion) to the Posey County Jail March 31, 1949.

The affidavit was filed against appellant on March 30, 1949. On April 1, 1949 he was required to enter his plea, after he was permitted to talk to an attorney in the court-room for fifteen minutes. At the expiration of that time the attorney apparently felt qualified to advise his client to plead guilty — probably influenced by the unlawful conduct of the State policemen and the unlawfully procured confession, and apparently by the promise of a suspended sentence. It is quite inane for this court to intimate a belief that the State Police did not threaten to use the coerced confession against appellant. The taking of the confession under the prevailing conditions, was an unlawful threat to use it against him. That it was a powerful influence with appellant and his inconsiderate lawyer is apparent from the hasty plea of guilty then entered.

The majority opinion correctly states: "We have repeatedly said that the trier of the facts may not disregard or refuse to consider uncontradicted testimony which is all one way." (Authorities.) Then it proceeds with a page of sophism in an effort to destroy the legal principle that it pretends to recognize. The rule that should govern us is well stated by Richman, J. in Kuhn v. State (1944), 222 Ind. 179, at page 183, supra, thus:

"Frequently an issue of fact is submitted and decided upon verified complaints and answers or upon affidavits and counter affidavits. . . . When so submitted uncontroverted facts appearing in the verified pleadings are treated as true and the trier resolves conflicts as he would in considering oral testimony." (My italics).

The facts showing "that appellant's attorney did not advise him of his constitutional rights and that he failed adequately to represent the appellant" as stated in the majority opinion, were contained in appellant's verified petition and it was introduced in evidence. The majority opinion admits that the above quoted facts are in the evidence and that they are uncontradicted, uncontroverted and undisputed. This alone, is surely sufficient to destroy the reasons, if any, upon which the opinion must rest. Surely no court may lawfully disregard or refuse to consider uncontradicted testimony that is all one way. Vonderschmidt v.State (1948), 226 Ind. 439, 442, 81 N.E.2d 782.

We cannot avoid knowing from the record that appellant was not adequately represented. From our knowledge of the constitution of the state and nation respecting the rights of an individual before the law and the many holdings of the courts with respect thereto, we judicially know that no lawyer anywhere or at any time could explain these constitutional rights to an average twenty-one year old layman in fifteen minutes so that he would understand them. To assert to the contrary is necessarily to assert too much. Many weeks are used by trained teachers in our law schools to present these far reaching fundamental truths to young men and young women of high intelligence, and even then quite generally they are only partially understood. Sometimes we read opinions on these propositions as in the majority opinion, and we wonder.

The verified complaint directly charged that appellant's attorney did not advise him of his constitutional rights and failed adequately to represent him. In such a situation there is no presumption either in favor of or against the attorney, the appellant, or the state. It presented the facts for trial, without presumptions either way. City of Indianapolis v.Keeley (1906), 167 Ind. 516, 525, 79 N.E. 499; Evansville,etc. R. Co. v. Berndt (1909), 172 Ind. 697, 701, 88 N.E. 612;Kilgore v. Gannon (1916), 185 Ind. 682, 114 N.E. 446;Minardo v. State (1932), 204 Ind. 422, 427, 183 N.E. 548; but when it was introduced in evidence it became evidence in the case that the court could not ignore, but must consider. Egbert v.Egbert (1948), 226 Ind. 346, 352, 80 N.E.2d 104.

What examination of the facts, the witnesses, the court, the jury, and prospective jurors, and of the law should an attorney make before advising as to a plea or engaging in a trial? InPowell v. Alabama (1932), 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, an appointment of attorneys for the defendants in a rape case at least six days before the day fixed for the trial (see Todd v. State [1948], 226 Ind. 496, 515, 81 N.E.2d 784) the Supreme Court of the United States said that this was not sufficient time for the defendant "to advise with counsel and prepare his defense."

In Bradley v. State; Taylor v. State (1949),227 Ind. 131, 136, 84 N.E.2d 580, 582 this court with its present personnel unanimously held:

"The fundamental right of a defendant in a criminal case to have competent counsel assist him in his defense carries with it as a necessary corrollary, the right that such counsel shall have adequate time in which to prepare the defense." (authorities).

We then held that 65 1/2 hours in which is included three nights and Sunday "was wholly insufficient for the attorneys to prepare adequately for the defense . . .," and that the allowance of this short time "amounted to a denial of due process of law as guaranteed by Amendment 14, § 1, of the Constitution of the United States" and to due course of law as guaranteed by Art. 1, §§ 12 and 13 of the Indiana Constitution.

If six days was insufficient time to prepare for trial in the Powell case, and 65 1/2 hours was insufficient time to prepare in the Bradley, Taylor cases, what overweening sufficiency can be found in the fifteen minutes in which appellant's attorney had to prepare in the case at bar? It seems to me that the question carries its own answer. That his attorney did not ask for time sufficient to investigate the many things he should have investigated, before advising the plea indicates his lack of professional ability, his lack of recognition of his professional duties, his lack of experience and his total incapacity to render more than merely perfunctory service to appellant at the time he advised the plea. The trial court could not have been ignorant of these facts for its intrinsic record necessarily showed the appearance of the attorney for appellant not to exceed fifteen minutes before the plea was entered. With this situation before the trial court and before this court on the record a single duty remains to be performed if we give force and effects to Art. 1, §§ 12 and 13 of the Constitution of Indiana and Section 1 of the 14th Amendment of the Constitution of the United States; and the statement in the majority opinion, that "if, taking into consideration these and other factors, the uncorroborated statements of this appellant did not carry conviction we think the court was entitled to disbelieve his assertions that his constitutional rights were not explained to him by his attorney," is quite absurd. This is especially true since there was no evidence to the contrary, and the trial court had neither duty nor authority to ignore it under the pretense of weighing the evidence. The statements of appellant referred to are fully corroborated by the trial court's intrinsic record. They are further corroborated by the failure of his erring attorney to appear and testify to the contrary. As shown by the dissent of Emmert, C.J. the attorney was adverse to appellant in this proceeding. It was the duty of the state, therefore, to produce the attorney's evidence if it would have been contrary to the so-called "uncorroborated" evidence of appellant. East v.State (1929), 89 Ind. App. 701, 704, 168 N.E. 28. See also authorities cited on this point by dissent Emmert, C.J. The fact that the state made no effort to produce this evidence when it was its duty and within its power to do so raises the presumption that had it done so this evidence would have been against the state and would have corroborated appellant's statement. This is compelling corroboration of appellant, and the authorities given in the majority opinion as follows: Lee v. State (1901),156 Ind. 541, 60 N.E. 299; Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157, and Carty v. Toro (1944), 223 Ind. 1,57 N.E.2d 434 are in full support of appellant's position. They do not support the appellee or the position stated in the majority opinion. I cannot imagine a case in which a party is required to place his adversary or his adversary's witnesses on the witness stand.

The majority opinion seeks to say that there is a difference in the legal effect of evidence produced, if the action to vacate the judgment and withdraw the plea is made by motion during the term at which the judgment was taken; instead of by a coram nobis proceeding instituted after the close of the term. So far as I can find there is no reason for this peculiar thought since each proceeding seeks the same end. However, this idea suggested by the majority opinion has been answered in Irwin v. State (1942), 220 Ind. 228, at pages 238, 239, 240, 41 N.E.2d 809, thus:

". . . When a defendant has been sentenced for a crime upon a plea of guilty without having been accorded his constitutional rights, it will be assumed that the trial court was mistaken in the facts, since it cannot be conceived that, knowing the facts, the court would have proceeded to judgment."

". . . The petition must be filed in the court in which the judgment was rendered, and, whether it be designated a petition for writ of error coram nobis or a motion to vacate the judgment, the right to relief will be determined from the facts alleged and proven. ``. . . The relief that may be administered by the one form of procedure is identical with that in the other.'"

Thus it appears that the force and effect of the evidence is exactly the same no matter which way the action is brought.

The evidence recited in the majority opinion conclusively shows that all appellant's attorney ever did for him and the other two boys charged with him was to make a plea for clemency. This plea contains approximately 216 words. There is nothing in the evidence indicating that he gave any advice of any kind or character, but out of the consultation whatever it was about, came the plea of guilty.

No matter from what angle the case may be considered the fundamental fact remains that appellant had an attorney for a period of only fifteen minutes immediately before his plea. For three days immediately prior he had been a prisoner in the exclusive custody of the State Police. Their wrongful conduct toward appellant has been noted. At the time of his plea he was still under their influence, and his attorney made no effort to release him from that influence by asking for a continuance for an investigation. On the contrary he served the plans of the State Police.

I feel sure appellant has been denied his rights under the constitutions of both the state and nation as noted, and that the judgment should be reversed, that a lawful trial may be had and a lawful judgment may be rendered.

NOTE. — Reported in 93 N.E.2d 184.