It found that Judge Kimbrough knew of the agreement before Spencer testified and waived any claim of error by failing to demonstrate at trial that Spencer's testimony was false. Ross v. State, Ind., 377 N.E.2d 634 (1978). The District Court for the Northern District of Indiana also found that Ross had failed to demonstrate any conflict of interest.
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Petitioner's conviction was affirmed on appeal to the Supreme Court of Indiana in Ross v. State, Ind., 377 N.E.2d 634 (1978). At trial, the prosecution rested a major portion of its case upon the testimony of its chief witness, Robert Spencer, an admitted participant in the crime, who had agreed to testify for the state in return for its dismissing the inflicting count.
Indeed, the concurrent representation of codefendants is "fraught with the potential for chaos" and "should be avoided as the plague." Ross v. State , 268 Ind. 608, 611, 377 N.E.2d 634, 636 (1978). For example, codefendants may raise conflicting defenses, with one implicating the other.
In Indiana, a person who aids another person to commit an offense is equally as guilty as the actual perpetrator of the offense. Chinn v. State (1987), Ind., 511 N.E.2d 1000; Ross v. State (1978), 268 Ind. 608, 377 N.E.2d 634. It is not necessary that the evidence demonstrate the accomplice personally participated in the commission of each element of the offense. Wilson v. State (1983), Ind., 455 N.E.2d 1120. Moreover, one may be charged as a principal and convicted on evidence that he aided in the commission of the crime.
As recognized by appellant, joint representation is not per se evidence of ineffective assistance of counsel. Ross v. State (1978), 268 Ind. 608, 377 N.E.2d 634. In order to prevail on such a claim, appellant must show that the representation by his counsel was wholly inadequate.
There was a legitimate difference between his clients and neither was jeopardized by his representation of the other. Joint representation does not constitute ineffective representation per se. Ross v. State (1978), 268 Ind. 608, 377 N.E.2d 634. Appellant claims he was subjected to unconstitutional prosecutorial misconduct and vindictiveness during the final argument in his second trial.
It is the duty of a defendant to show that the joint representation resulted in actual prejudice. Dean v. State, (1982) Ind., 433 N.E.2d 1172; Ross v. State, (1978) 268 Ind. 608, 377 N.E.2d 634. Averhart cites us Ross v. Heyne, 638 F.2d 979, (7th Cir. 1980). However, Ross does not aid him in his contention because in Ross, a co-defendant was represented by the law partner of another defendant's attorney.
In raising such an issue, the defendant must show that where there was no objection at trial, such as here, the joint representation resulted in actual prejudice. Dean v. State, (1982) Ind., 433 N.E.2d 1172, modified on other grounds, 441 N.E.2d 457; Ross v. State, (1978) 268 Ind. 608, 377 N.E.2d 634. In Cuyler v. Sullivan, (1980) 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333, the United States Supreme Court held that a trial court need not initiate an inquiry into joint representation unless it knows or reasonably should know that a particular conflict exists.
We have previously held that such representation does not per se constitute ineffective assistance of counsel. Ross v. State, (1978) 268 Ind. 608, 377 N.E.2d 634; Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60, cert. denied, (1975) 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841. The record is devoid of any indication that a conflict of interest arose concerning the lawyer's representation of both defendants.
They contend that the conflict is evidenced by the admission of Robert's statement to the victim and Charles' trial testimony. In Ross v. State, (1978) 268 Ind. 608, 377 N.E.2d 634, [5] 636-37, we stated: "Simultaneous representation of co-defendants is fraught with the potential for chaos at worst and frustration at best.