Collins v. State

Decision Date05 March 1982
Docket NumberNo. 381S53,381S53
Citation431 N.E.2d 802
PartiesAlmquist COLLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Joseph O'Connor, O'Connor & Weigle, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Attempted Murder, Ind.Code §§ 35-42-1-1 and 35-41-5-1 (Burns 1979) and was sentenced to a term of thirty-five (35) years imprisonment.

This direct appeal seeks review upon the following issues:

(1) Whether there was sufficient evidence of guilt to sustain the conviction?

(2) Whether the Defendant was denied effective assistance of counsel?

ISSUE I

The evidence most favorable to the State discloses that on November 2, 1979, Winston Cunningham, the victim, and the defendant were together at the residence of their mutual acquaintance, Andre Kyles. They had a conversation about some prior offense between them, with Defendant accusing Cunningham of not acting right towards him and Cunningham suggesting they forget their past differences and be friends.

Cunningham requested Defendant to drive him home, and he agreed. The three then departed in Defendant's automobile with Kyles driving, Cunningham in the front passenger seat and the defendant in the rear passenger compartment.

After they had driven for awhile, Kyles said "this is where the bitch lives." Cunningham turned his head to look, felt a sharp gunshot wound to his neck and lost most feeling in his body. Kyles then said "Shoot the punk motherfucker again," and the defendant shot him again. He then lost consciousness. During this episode, Cunningham was facing Kyle, who had one hand on the steering wheel and the other on the front seat beside him. The defendant was sitting behind Cunningham. Cunningham was left in the street, and the police found him a number of hours later. His injuries left him paralyzed from the neck down.

Defendant contends that the evidence was insufficient to sustain his conviction for attempted murder. He argues that the only evidence supporting the jury's verdict was the uncorroborated evidence of the victim regarding the events of the shooting, and the circumstantial evidence:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed.

In such a review we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." (citations omitted).

Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Defendant acknowledges the aforestated rule of appellate review and also acknowledges that a conviction may be sustained upon the uncorroborated testimony of the victim alone; Lewis v. State, (1976) 264 Ind. 288, 294, 342 N.E.2d 859, 863 or upon circumstantial evidence alone, Williams v. State, (1979) Ind., 395 N.E.2d 239, 245, but he asserts that no reasonable jury could have found him guilty beyond a reasonable doubt because of a failure of proof by substantial and probative evidence, but we disagree. He points primarily to the absence of eye witness testimony to the firing of the shots and to the absence of medical testimony affirming the cause of Cunningham's injuries. Under the circumstances of this case, neither was necessary.

The inference drawn by the jury was quite reasonable and logical.

From the evidence recited, a reasonable man could find, beyond a reasonable doubt, that Defendant intended to kill Cunningham and took a substantial step towards that end. The evidence, therefore, is sufficient to sustain the verdict.

ISSUE II

Defendant contends that the trial court's denial of his motion for a continuance to allow his counsel adequate time to prepare his defense, in effect, denied him his right to the assistance of counsel and to a fair trial.

On January 16, 1980, Defendant appeared in person and requested a continuance to enable him to retain private counsel. The request was granted and the cause continued to January 18th for arraignment.

At the January 18 hearing, Defendant was found to be indigent. Public Defender, Szarmach was appointed to represent him, and the cause was continued to January 24 for arraignment. On that date, Defendant, with counsel, entered a plea of not guilty. Defendant's motion for pre-trial discovery was sustained and a motion for bond reduction was made. Hearing on that motion was set for February 1.

The bond reduction motion was heard and denied on the day scheduled; and an oral motion for change of judge was granted. At the same hearing, the special judge was selected, and the cause continued to February 8. The special judge qualified on February 4, however, and rescheduled the cause for omnibus hearing on February 22. On that day, Defendant was again examined and determined to be an indigent, and Public Defender Ruff was appointed to replace Szarmach. The motion for bond reduction was renewed, and the matter continued to March 5.

At the March 5 hearing, evidence was heard on the bond reduction motion. The motion was again denied, and the cause was set for an omnibus hearing on March 20.

On March 18, Defendant filed a lengthy pro se motion and supporting memorandum for release upon his own recognizance, which motion was denied, without a hearing. On March 20, the matter was continued sua sponte to March 21; and on March 21st was continued to March 24 on Defendant's motion. On that day, it was determined that there were no further issues for omnibus hearing, and the cause was set for trial...

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6 cases
  • Resnover v. State
    • United States
    • Supreme Court of Indiana
    • 19 mars 1984
    ...be reversed only when a clear abuse of that discretion is indicated. Caccavallo v. State, (1982) Ind., 436 N.E.2d 775; Collins v. State, (1982) Ind., 431 N.E.2d 802. To demonstrate an abuse of discretion, a defendant must show that he suffered prejudice. Downer v. State, (1982) Ind., 429 N.......
  • Kimball v. State, 2-883-A-292
    • United States
    • Court of Appeals of Indiana
    • 12 septembre 1984
    ...more than two months actively preparing for trial of a relatively straightforward criminal recklessness case. See also Collins v. State, (1982) Ind., 431 N.E.2d 802. If the rationale of the majority prevails, it would often be impossible for either a private law firm or the public defender'......
  • Martin v. State
    • United States
    • Supreme Court of Indiana
    • 29 septembre 1983
    ...of the trial judge, and his decision will not be disturbed, absent a clear showing of an abuse of discretion. Collins v. State, (1982) Ind., 431 N.E.2d 802, 805; Aron v. State, (1979) Ind., 393 N.E.2d 157, 158; Cooper v. State, (1972) 259 Ind. 107, 110, 284 N.E.2d 799, 801; Walker v. State,......
  • Wolfe v. State
    • United States
    • Supreme Court of Indiana
    • 13 novembre 1990
    ...inferences to be drawn therefrom; we will not weigh conflicting evidence nor judge the credibility of the witnesses. Collins v. State (1982), Ind., 431 N.E.2d 802. The foregoing claims by appellant involve matters which in fact were placed before the jury and which go to the weight of the e......
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