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08/24/87 JOHN A. SMITH v. STATE INDIANA

Filed: August 24, 1987.

JOHN A. SMITH, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION COUNTY SUPERIOR COURT, CRIMINAL DIVISION TWO, The Honorable Webster L. Brewer, Special Judge.

DeBruler, J., Shepard, C.j., Givan, Pivarnik, and Dickson, JJ., concur.

Author: Debruler

DeBRULER, J.

This is an appeal following denial of a petition for post-conviction relief. Appellant's murder conviction was upheld on direct appeal in Smith v. State (1981), 275 Ind. 642, 419 N.E.2d 743.

There are two issues presented for review: (1) whether appellant's trial attorney provided ineffective assistance of counsel; and (2) whether newly discovered evidence requires a new trial.

I

Testimony in the trial court revealed that appellant was acquainted with Marvin Foster and Kalvyn Collins and was often seen in their company. Foster and Collins lived together in a basement apartment of a house leased by Collins's mother. Collins's two year old daughter also resided with them.

On August 18, 1978, Foster, Collins and her daughter were all asleep in one bed when Collins was awakened by a scream and observed Foster and appellant struggling. Foster collapsed, appellant fled and Collins ran upstairs to her mother's bedroom. By the time police arrived, Foster was dead as a result of numerous stab wounds.

In support of his claim that his trial counsel was ineffective, appellant presents the following:

(A) counsel's failure to investigate and/or utilize police and hospital reports;

(B) counsel's failure to investigate and/or present evidence of Collins's negative reputation for truth and veracity;

(C) counsel's failure to investigate and/or present alibi evidence;

(D) counsel's failure to object to portions of Collins's testimony concerning prior misconduct by appellant;

(E) counsel's failure to utilize prior statements made by Collins to impeach Collins's testimony;

(F) counsel's failure to object on the grounds of lack of foundation to Collins's testimony relating a threat ...


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