Koonce v. State

323 N.E.2d 219 (1975)

Nathan Raymond KOONCE, Appellant, v. STATE of Indiana, Appellee.

No. 1172S156.

Supreme Court of Indiana.

February 24, 1975.

Rehearing Denied April 29, 1975.

*220 Harriette Bailey Conn, Public Defender, Larry A. Landis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Russell W. Sims, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

Defendant has taken this Belated Appeal from his conviction by a jury for the crime of Second Degree Murder. The Defendant's wife was murdered November 14, 1969, in Hammond. Four persons testified that on the night of the murder the Defendant forced them at gunpoint to drive him to Henderson, Kentucky, and that during the trip the Defendant repeatedly said he had shot and killed his wife. Defendant was arrested at Henderson in his father's home. In the room where Defendant was found a .25 caliber pistol was recovered. A firearms expert testified that the bullet taken from the body of the Defendant's wife was fired from that gun.

The first issue which Defendant raises is the admissibility of a conversation he had with Hammond police officers wherein he admitted being in the presence of his wife at the time and place of the killing. We need not consider the constitutional question of whether or not the Defendant was properly advised of his Miranda rights. The conversation admitted into evidence did not contribute to the verdict. The introduction of evidence which is merely cumulative and not decisive of guilt is not prejudicial error. Mitchell v. State, (1972) Ind., 287 N.E.2d 860; Grimes v. State, (1972) Ind., 280 N.E.2d 575; Jackson v. State, (1971) Ind., 275 N.E.2d 538. Defendant's well-prepared argument on this point concludes as follows:

"A statement by the defendant that he was with the deceased at a time reasonably contemporaneous with the discovery of her body, that they were arguing, that she started to get out of the car, that he reached for her, and that was the last thing he could remember, certainly must have had a prejudicial impact on the minds of the jury and must have eliminated doubt as to the defendant's guilt."

These admissions made in a statement to the police were undoubtedly prejudicial. However, the statement was merely cumulative evidence in view of the testimony of the four witnesses detailing defendant's admission of the murder to them while en route to Kentucky. Therefore, the state has met its burden of showing that the defendant was not prejudiced by the alleged error. Chapman v. California, (1967) 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705; Dickerson v. State, (1972) Ind., 276 N.E. *221 2d 845; Harris v. State, (1968) 249 Ind. 681, 231 N.E.2d 800.

Defendant's other claim is that the failure of his trial counsel to object to an instruction which disparaged the defense of insanity is proof of incompetent representation because two years later that sort of instruction was held no longer proper. Dipert v. State, (1972) Ind., 286 N.E.2d 405. Obviously, the failure of a trial attorney to anticipate subsequent appellate rulings does not constitute the "mockery of justice" which is the threshold of incompetent representation. Payne v. State, (1973) Ind., 301 N.E.2d 514; Hoskins v. State, (1973) Ind., 302 N.E.2d 499. A defendant has a right to competent counsel but not a right to representation by a genius or soothsayer.

Finding no error, we affirm the judgment of the trial court.

GIVAN, C.J., and HUNTER and PRENTICE, JJ., concur.

DeBRULER, J., concurs in result.