ATTORNEY FOR APPELLANT|
Phillip R. Smith
ATTORNEYS FOR APPELLEE|
Jeffrey A. Modisett
Janet Brown Mallett
) THOMAS LEE ANDERSON, ) ) Appellant (Defendant below ), ) Supreme Court ) Cause No. 79S00-9708-CR-439 v. ) ) STATE OF INDIANA, ) ) Appellee (Plaintiff below ). ) )
of which would also have been fatal.
At trial, Officer Kohne testified that when he arrived at Anderson's apartment on the night Hurt died, Anderson told him that he knew why he was there. Anderson identified the folding knife on his coffee table as the knife he carried with him to Hurt's house that day. Anderson told Kohne that after Hurt started a fight by hitting Anderson in the back of the head, he pulled out his knife . . . and stuck it into Jimmy's (Hurt's) neck.
The jury returned a guilty verdict and the trial court sentenced Anderson to sixty years.
and Texas, she was a usurperSee footnote 1
the office of prosecuting attorney and therefore could not
assume de facto authority.
From this premise Anderson concludes he need not show
prejudice from Benson's participation. However, Benson was acting under the authority of
Meyers, her supervisor, and accordingly was not a usurper in the first place
-- or other grant of authority -- gives the appointee at least colorable title to office. An
appointee is not a usurper. Snurr v. State, 105 Ind. 125, 132, 4 N.E. 445, 449 (1886). See
also State v. Sutherlin, 165 Ind. 339, 350, 75 N.E. 642, 646 (1905) (where jury commissioner
was appointed by court, although wrongful or illegal, he acted under color of right or
authority and was not a mere usurper). Accordingly, as the trial court found, Benson was
a de facto official.
The lack of authority of a de facto prosecutor must result in harm to the defendant in order to constitute reversible error. Cox v. State, 493 N.E.2d 151, 160 (Ind. 1986) . Anderson directs us to no evidence of wrongdoingSee footnote 2 2 by Benson during the trial or any other source of prejudice that would support a reversal of his conviction. In the absence of evidence of prejudice to the defendant, we find no basis for reversing Anderson's conviction based on Benson's participation. Id. at 160 (Ind. 1986) ; Kindred v. State, 674 N.E.2d 570,
574 n.5 (Ind. Ct. App. 1996), trans. denied (no reversible error where prosecutor improperly
participated in defendant's proceedings, but no prejudice resulted to defendant
In a final effort to plug the gap in his argument, Anderson points to Butler v. State, 668 N.E.2d 266 (Ind. Ct. App. 1996) which held that where an Illinois attorney represented a criminal defendant in an Indiana court without permission of the court, the attorney's conduct was a per se violation of the defendant's right to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I § 13 of the Indiana Constitution. The court reasoned that an attorney who is not admitted is, by definition, incompetent. Prejudice to the defendant was presumed and a new trial was ordered. Id. at 268. Anderson asks that we apply the same presumption of prejudice and find that a fair trial necessarily includes prosecution by a properly licensed prosecuting attorney regardless of any harmful effect. We find no authority or reason for expanding Butler to require reversal based on a conviction by an unlicensed prosecutor. This has no Sixth Amendment or Article I § 13 implications. Nor does Butler's reasoning apply where the unlicensed attorney is merely a participant on a team under the direction of a properly qualified lawyer, in this case Meyer.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). [I]t is presumed that
counsel exercised reasonable professional judgment in making important decisions;
accordingly, we scrutinize the handling of the case with great deference. State v. Moore,
678 N.E.2d 1258, 1261 (Ind. 1997) cert. denied U.S. , 118 S. Ct. 1528, 140 L. Ed. 2d
678 (1998). Absent some effect of [the] challenged conduct on the reliability of the trial
process, the Sixth Amendment guarantee is generally not implicated.(citations omitted)
United States v. Cronic, 466 U.S. 657, 657, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).
two prongs of Strickland are separate and independent inquiries; thus if it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed. Strickland, 466 U.S. at 699.
Anderson had been diagnosed as suffering from schizophrenia. In light of this fact he contends that his counsel's failure to request a competency hearing constituted ineffective assistance. Anderson's argument requires us to assume that had the trial court been presented with the evidence of his schizophrenia, a competency hearing would have been granted, and that the result of both the examination and hearing would have been a determination of incompetence. The record does not support either of these significant assumptions. The standard for deciding competency is whether or not the defendant possesses the ability to consult rationally with counsel and comprehend the proceedings against him. Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995). Anderson offers no evidence of incompetency and points to no incident that would have alerted trial counsel or the court to his inability either to understand the proceedings or assist his counsel with his
defense. [N]ot all mental conditions are serious enough to relieve one of criminal
responsibility. Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994).
Even if we were to assume,
and we do not, that a prior diagnosis of schizophrenia requires defense counsel to request a
competency hearing, Anderson offers no basis to conclude that the request would have been
granted or that the examination and subsequent hearing would have resulted in his being
found incompetent. Accordingly, Anderson failed to establish a claim for relief based on
ineffective assistance of counsel.See footnote 3
476, 488 (Ind. 1985). A jury is entitled to infer knowing killing from the deliberate use of
a deadly weapon in a manner likely to cause death or serious injury. Cate v. State, 644
N.E.2d 546, 548 (Ind. 1994); Underwood v. State, 535 N.E.2d 118, 121 (Ind. 1989).
Evidence that Anderson stabbed Hurt repeatedly in the neck and chest with a large knife was
sufficient to support a conviction.
Converted by Andrew Scriven