Coonan v. State

Decision Date13 November 1978
Docket NumberNo. 1177S789,1177S789
PartiesMark COONAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

John F. Surbeck, Jr., Deputy Public Defender, Thomas L. Ryan, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Mark Coonan, was convicted by a jury of first-degree murder, Ind.Code § 35-13-4-1(a) (Burns 1975), and was sentenced to life imprisonment. He now appeals raising the following issues:

1. Whether the trial court erred in denying defendant's motion to participate actively in the trial;

2. Whether the trial court erred in overruling defendant's objections to the testimony of two police officers during which defendant was referred to as a "suspect";

3. Whether the trial court erred in denying defendant's motion for mistrial as a result of references to a polygraph examination of one of the state's witnesses;

4. Whether the trial court erred in giving the state's tendered instruction No. 10;

5. Whether the trial court erred in refusing to direct a verdict for defendant and whether there was sufficient evidence on the issue of sanity to support the verdict of the jury;

6. Whether the trial court erred in giving state's instructions No. 8 and No. 9;

7. Whether the trial court erred in modifying some of defendant's instructions;

8. Whether the testimony of one of the expert witnesses on the issue of defendant's sanity was properly admitted; and

9. Whether the opinion testimony of a lay witness with respect to defendant's ability to control himself was properly admitted.

The evidence from the record most favorable to the state indicates that the defendant was allegedly angry at Bill Brown because he thought Brown had informed on him to the police about a drug incident. Defendant's girl friend, Laura Theriot, testified that she arranged to meet Brown one night outside a bar and then she and Brown got into defendant's van where defendant was waiting.

She further testified that the three of them drove to the outskirts of Fort Wayne where she parked the van beside the road. Defendant forced Brown, at gunpoint, to walk away from the van into an area commonly known as the "Cook Road Dump." Laura waited in the van and heard several gunshots; then defendant returned to the van alone and they drove off.

Defendant entered a plea of not guilty by reason of insanity. He presented evidence which indicated a long history of drug use for medical reasons during his childhood. The evidence also indicated that he had been voluntarily using drugs since the age of thirteen. There was testimony to the effect that he had taken so many barbiturates on the night of the crime that he passed out earlier in the evening. He contends that he was so heavily under the influence of drugs that he could not control his actions. A voluminous amount of testimony from both expert and lay witnesses was presented on the issue of defendant's sanity.

I.

Several weeks before trial, the defendant asked the court for permission to represent himself along with his appointed counsel. The court denied this motion. The defendant now claims that his right to represent himself pursuant to Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, was violated.

This Court has recently held that there is no constitutional right to hybrid representation and that granting of a request for the same is within discretion of the trial judge. Bradberry v. State, (1977) Ind., 364 N.E.2d 1183. The decision in Bradberry is consistent with several other post-Faretta decisions, which have specifically considered Faretta and concluded that there is no constitutional right to hybrid representation. United States v. Williams, (8th Cir. 1976) 534 F.2d 119, 123, Cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Hill, (10th Cir. 1975) 526 F.2d 1019, 1024-25, Cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Gaines, (N.D.Ind.1976), 416 F.Supp. 1047, 1050-51.

The defendant contends that in the instant case, since he asked for permission for hybrid representation several weeks before trial, there would have been no confusion in joint representation during the trial and that the trial judge abused his discretion by denying the motion. We disagree. There are other issues besides the possibility of confusion which the trial court must consider. One of these is the allocation of power to counsel to make binding decisions of trial strategy. Faretta, supra. The defendant has not shown how he was prejudiced by being denied hybrid representation. He has not claimed any ineffectiveness of counsel. The trial court properly exercised its discretion here, and no error is presented on this issue.

II.

The defendant alleges that certain testimony of two police officers during which he was referred to as a "suspect" was erroneously admitted because it was opinion testimony by lay witnesses upon an ultimate fact for the jury. The testimony in question concerned the investigation by police of Laura's residence. The police officers were asked why they were at that particular location, and they answered that it was believed to be "the target area of a suspect involved in a homicide." They were then asked if they had been furnished with any names. Over defendant's objections they were allowed to answer with the names of defendant and Laura Theriot.

The old rule that a witness may not give an opinion of an ultimate fact question has been abrogated in this state. Woods v. State, (1978) Ind., 372 N.E.2d 178; Rieth-Riley Construction Company, Inc. v. McCarrell, (1975) Ind.App., 325 N.E.2d 844. However, defendant has not demonstrated that the complained of testimony was opinion testimony nor has he cited any cases to uphold this position. What information the officers received was certainly within their personal knowledge and they did not have to make any conclusion as to that information. Any objection to this testimony on other grounds has been waived for failure to argue other grounds. There was no error presented in the admission of this testimony.

III.

The defendant next alleges that it was reversible error to admit testimony which included two references to a polygraph examination of the state's witness, Laura Theriot. While it is true that references to polygraph examinations are generally not allowed, Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352, such testimony may be admitted if there has been a waiver. Swan v. State, (1978) Ind., 375 N.E.2d 198.

The first reference to the polygraph examination was made in a videotaped statement of Laura Theriot. The admissibility of the videotaped statement was stipulated by both the defendant and the state. Once a stipulation is entered into between the parties, the facts so stipulated are conclusive upon both the parties and the tribunal. Faught v. State, (1974) 162 Ind.App. 436, 319 N.E.2d 843. Defendant did not object to the mention of the polygraph examination when the videotape was played to the jury and has thereby waived his right to have all mention of the test excluded. Swan, supra.

The second reference to the polygraph examination came during the testimony of Dr. Kilgore who was testifying as an expert witness on the issue of defendant's sanity. The doctor mentioned Laura's polygraph report when he was explaining all the reports he had examined concerning the defendant's history of drug use. This testimony was not elicited, and since the polygraph examination had already been mentioned without objection, there was no error. Swan, supra.

IV.

The defendant objected to state's instruction No. 10 alleging that it tended to emphasize certain facts and invaded the province of the jury. Evidence had been presented during the trial to show that defendant had attempted to plan with others to set fire to Laura's house to keep her from testifying. The court gave the following instruction:

"Evidence has been introduced as to a plan by the defendant to prevent certain witnesses from being present and testifying on behalf of the State at the trial of this case.

"If you find from the evidence that the defendant did so plan to prevent witnesses from testifying, this is a circumstance that may be considered by you together with all other evidence in this cause in determining the question of his guilt or innocence."

Before giving this instruction, the court had added the phrase "together with all other evidence in this cause" to the state's original tendered instruction No. 10 to be sure the jury did not unduly emphasize this particular evidence. The giving of instructions lies largely within the discretion of the trial court, and there was no error in giving this instruction as modified where it was a correct statement of the law and was applicable to the evidence presented. Frasier v. State, (1974) 262 Ind. 59, 312 N.E.2d 77.

V.

Defendant asserts that the trial court erred in refusing to direct a verdict for him at the conclusion of the state's evidence, and that there was insufficient evidence to support the verdict of the jury with respect to defendant's sanity.

It is true that when a defendant enters a plea of not guilty by reason of insanity, the burden of proving sanity beyond a reasonable doubt is on the state. Montague v. State, (1977) Ind., 360 N.E.2d 181; Johnson v. State, (1970) 255 Ind. 324, 264 N.E.2d 57. We treat the issue of defendant's sanity like other questions of fact. Montague, supra.

This Court does not judge the credibility of witnesses nor weigh evidence, but rather looks to the evidence most favorable to the state and the reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, that conclusion will not be overturned. Jones v. State, (1978) I...

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