Parr v. State
| Decision Date | 09 March 1987 |
| Docket Number | No. 1083S363,1083S363 |
| Parties | Richard L. PARR and Michael Gourley, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Eugene C. Hollander, Sp. Asst. to the Office of the State Public Defender, Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellants, Michael Gourley and Richard L. Parr, appeal their convictions, following jury trial, of robbery, a class A felony. 1 Both defendants were sentenced to thirty-three (33) years imprisonment.
The following issue was presented by both Parr and Gourley:
1. Whether the trial court erred in denying their joint motion to suppress?
In addition, Parr presents the following additional issues:
2. Did the trial court abuse its discretion in denying Parr's motion for continuance to obtain private counsel?
3. Did the trial court abuse its discretion in denying Parr's motion for separate trial?
4. Did trial court err in ordering Parr's pre-trial transfer from Greene County to the Indiana Department of Correction?
5. Was the evidence insufficient because of inherent unbelievability?
6. Was the sentence unreasonable?
Defendants first claim that error occurred when the trial court denied their joint motion to suppress. Defendants now contend that the denial of this motion raises the following questions: 1) was the detention of the defendants and of Parr's vehicle unlawful because of the absence of probable cause, 2) was the "show-up" pre-trial identification impermissibly suggestive, 3) did the "show-up" taint the victim's in-court identification testimony. As to the search of Parr's vehicle, defendants contend that the failure to grant the motion to suppress resulted in the subsequent improper admission into evidence of a wooden tool handle allegedly used as a weapon. However, the motion to suppress did not specifically raise any issue regarding whether the detention or arrest of the defendants was supported by probable cause. At trial, the wooden tool handle was admitted into evidence without any objection by either defendant. Likewise, no objection was presented to testimony regarding the out-of-court "show-up" or to the in-court identifications of the defendants by the victim. Any error in overruling a motion to suppress evidence is not preserved unless a timely objection is made when the challenged evidence is offered at trial. Minneman v. State (1982), Ind., 441 N.E.2d 673, cert. denied (1983), 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307.
While defendants' motions to correct errors did challenge the legality of their detention and resulting identification by the victim, these issues were not presented by objection at trial. A party may not await the result of a trial and then claim an error not raised when there was yet time for the court to take appropriate action, if warranted. Inman v. State (1985), Ind., 482 N.E.2d 451.
We find no error on this issue.
Defendant Parr next contends that the trial court abused its discretion in denying his motion for continuance to obtain private counsel. On December 15, 1982, Parr appeared in court following his arrest, and his request for appointed counsel was granted. Trial date was then scheduled for April 26, 1983. Defendants Parr and Gourley filed motions for early trial on December 17, 1982, whereupon the trial court rescheduled their trial date for February 17, 1983. One week before the trial was to begin, Parr filed multiple motions seeking separate trial, continuance, withdrawal of his speedy trial request, and further discovery. Parr's motion for continuance asserted grounds other than those enumerated by Ind. Code Sec. 35-36-7-1. It alleged that Parr had been incarcerated continuously from his arrest on December 11, 1982, until he posted bond on February 2, 1983; that since his release he had unsuccessfully attempted to retain private counsel; and requested a continuance to allow him a reasonable opportunity to obtain private counsel of his own choosing. Following a hearing, the trial court denied Parr's motion for continuance, and jury trial commenced February 17, 1983.
Parr contends that he had a right to counsel of his choosing, and cites as supporting authority Houze v. State (1982), Ind., 441 N.E.2d 1369, and Morgan v. State (1979), Ind.App., 397 N.E.2d 299. He is mistaken. Our decision in Houze, while recognizing a defendant's absolute right to be represented by counsel, holds that a defendant is not necessarily entitled to a change in court-appointed counsel. Similarly, the principles recognized in Morgan do not support Parr's contention here:
While an accused should have an opportunity to secure counsel of his choice when he is financially able to do so, it is nonetheless imperative that he exercise this right of selection at the appropriate stage of the proceeding. McCraney v. State (1979) Ind.App. , 388 N.E.2d 283; Atkins v. State (1977) Ind.App. , 370 N.E.2d 985. The freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administration of justice. U.S. v. Terry (5th Circuit 1971), 449 Fed.2d 727. A trial court, in the exercise of its discretion, may refuse to allow an accused to replace counsel during or immediately before trial because such a substitution would require the court to grant a continuance. Wombles v. State (1979) Ind. , 383 N.E.2d 1037; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811.
Defendant argues that he was a resident of the State of Illinois, that he had no knowledge of the local attorneys for Greene County where his trial was to be held, and that he had been held at the Indiana State Reformatory, more than one hundred miles away, until January 24, less than a month before trial. At the hearing on his motion for continuance, Parr explained that since his release on bond, he had obtained employment, and unsuccessfully attempted to talk to nearby Indiana attorneys. He further stated that he did not know what it would cost to employ counsel, and that he was unsure whether he could obtain sufficient funds for such employment.
The case of Collins v. State (1980), 274 Ind. 619, 413 N.E.2d 264 bears a striking similarity to the present facts. Notwithstanding his accurate representation by an appointed public defender for approximately three months, defendant sought a continuance one week before trial for the purpose of employing a private attorney. Writing for a unanimous Court, Justice DeBruler observed:
Appellant had several months in this case in which to employ an attorney of his own choice to conduct his defense. He did not avail himself of this opportunity. He waited instead until shortly before the trial was scheduled, at a point in time when the employment of new counsel would frustrate the trial. Appellant "failed to exercise the right to select his own counsel at an appropriate stage of the proceeding." Atkins v. State (1977) Ind.App. , 370 N.E.2d 985.
413 N.E.2d at 267, 274 Ind. at 623. In Vacendak v. State (1982), Ind., 431 N.E.2d 100, 105, Justice Pivarnik synthesized the rules applicable to review of a denied motion for continuance for the purpose of changing counsel:
This Court has held that a trial court may refuse to allow a criminal defendant to replace his counsel during or immediately before trial. German v. State (1978) Ind. , 373 N.E.2d 880; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811. Failure to grant an untimely request for change of counsel is not error absent a showing by Defendant that he was prejudiced by anything his attorney did or did not do. Harris v. State (1981), Ind.App., 416 N.E.2d 902. There is no such showing here. The facts in each case determine whether a denial of request for continuance to obtain counsel is a violation of Article 6 of the Amendments to the Constitution. Ungar v. Sarafite 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921. A defendant may not frustrate or disrupt sound judicial administration by a deliberate process of discharging retained or assigned counsel. The United States v. Hampton (7th Circuit 1972), 457 Fed.2d 299, cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101.
The ruling on a motion for continuance not based upon statutory grounds is within the sound discretion of the trial court and will be reversed only for an abuse of discretion. Himes v. State (1980), 273 Ind. 416, 403 N.E.2d 1377; Works v. State (1977), 266 Ind. 250, 362 N.E.2d 144. In order to demonstrate an abuse of discretion, the record must reveal that the defendant was prejudiced by the failure to grant the continuance. Dorton v. State (1981), Ind., 419 N.E.2d 1289.
Parr has made no showing that he was prejudiced by the trial court's denial of his motion for continuance.
In his next contention, Parr argues that the trial court abused its discretion in denying his motion for separate trial made one week before trial. Parr asserts that it prejudiced him by forcing him to stand trial with a co-defendant who had a previous criminal record. He also argues that severance was necessary to give him adequate time to retain private counsel.
Parr's motion was based upon Ind.Code 35-34-1-11(b) which provides in part:
In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant.
A trial court has discretion to determine whether severance was necessary to insure a fair trial. We will only review its decision for an abuse of discretion. We consider events that actually occurred at trial to determine whether the trial...
To continue reading
Request your trial
-
Lampkins v. State
...at trial and not allegations in the motion for severance." Hopper v. State, 539 N.E.2d 944, 947 (Ind.1989) (citing Parr v. State, 504 N.E.2d 1014, 1017 (Ind.1987)). See also Averhart v. State, 470 N.E.2d 666, 680 (Ind.1984) ("The soundness of the trial court's discretion is measured by what......
-
Baxter v. State
...within the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of that discretion. Parr v. State (1987), Ind., 504 N.E.2d 1014. The trial court in this case accurately concluded that good cause had not been established. Counsel had nearly four months t......
-
Hubbell v. State
...this Court with any authority as to why a violation of these statutes should be cause to vacate these convictions. See Parr v. State, 504 N.E.2d 1014, 1018 (Ind.1987). ...
-
Huffman v. State
...discretion, we will consider events which actually occurred at trial and not the allegations in the motion for severance. Parr v. State (1987), Ind., 504 N.E.2d 1014. The mere fact that one defendant implicates another does not entitle the latter to a separate trial. Baysinger v. State (198......