Crim v. State, 3--1172A79
| Decision Date | 17 April 1973 |
| Docket Number | No. 3--1172A79,3--1172A79 |
| Citation | 156 Ind.App. 66,294 N.E.2d 822,36 Ind.Dec. 132 |
| Parties | John C. CRIM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Myron J. Hack, South Bend, for appellant. Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.
On August 22, 1969 the Appellant was indicted for the crime of rape as defined in I.C. 71, 35--13--4--3, Ind.Ann.Stat. § 10--4201 (Burns 1956). Appellant was charged with the rape of a 19 year old female on August 18, 1969. The defendant was tried before the trial court, commencing on October 28, 1971, without the intervention of a jury, was found guilty of the offense of assault and battery with the intent to commit a felony, to-wit: rape, and sentenced for a term of not less than one year nor more than ten years.
At earlier stages in this proceeding the Appellant was represented by another attorney. On February 24, 1970 the trial of the charge contained in this same indictment was commenced before a jury in the Pulaski Circuit Court. The following proceedings took place on that date and are here relevant for our consideration:
'Court: This is the case, this morning, of the State of Indiana vs. John C. Crim. This is Cause No. 10--102 on the docket of the Pulaski Circuit Court. Now the case is set for trial this morning, has been set for some time, and the record shows at this time that John M. Lyons from Valparaiso is your attorney, John--and you are the John Crim that is charged, are you not?
John Crim: Yes, sir.
Court: Well, do you know what Mr. Lyons is going to do, or what does he intend to do?
John Crim: I have been notified that Mr. Lyons had withdrawed (sic) from the case.
Court: Has he given you nitice in writing or anything?
John Crim: No, he did not, sir.
Court: As of now he is still attorney of record and I have received to notice of any kind that he was withdrawing. No, have you got counsel this morning?
John Crim: No, I do not, not this morning.
Court: And, of course, you understand, do you not, what the charge and what the case is about?
John Crim: Yes, sir.
Court: Have you talked about that with Mr. Lyons?
John Crim: Yes, sir.
Court: Do you know what the charge is and what the penalty might be?
John Crim: Yes, sir.
Court: That is, if you were found guilty?
John Crim: Yes, sir.
John Crim: Will I be allowed to defend myself, your Honor or can I ask the Court for counsel at this time?
Court: I thought we had talked about that, or I thought I had told you.
John Crim: Evidently Mr. Lyons hasn't withdrawed (sic) and it is hanging fire at this time, and as you stated at that time, it is getting late.
Court: As I recall, you had asked at that particular time about pauper counsel, and I told you that that would be a perfect request if you had someone file a petition for you, and you had ample opportunity and it hasn't been done. These things necessarily have to move along and this is why I didn't change any dates or anything.
Mr. Crim: At this time, having my counsel not appear or not withdrawn, and finding out at this time about my request for change of venue, at this time I am going to have to ask that counsel be appointed for me.
Court: What is the reason for that?
John Crim: Well, there has evidently been confusion over apparently who my counsel was.
Court: There hasn't been any confusion insofar as the Court is concerned. You had counsel of record. Nothing shows that he has withdrawn or that he has been discharged and you had opportunity to--
John Crim: He had told me that he would send you a letter of withdrawal.
John Crim: Yes, sir, I have.
Court: With whom?
John Crim: Max C. Shirley.
Court: Is he going to appear for you?
John Crim: No, sir, you Honor, he was not able to appear on such short notice.
Court: When did you see him?
John Crim: I talked to Mr. Shirley--it has been a week now; I couldn't give no exact date.
Court: Did he refuse for that reason?
John Crim: That was one of his reasons, yes, sir. The other was the distance involved.
Court: The only thing I know is to require to ask you if you are going to sign this waiver. There is no need keeping these people waiting, and as far as I am concerned the case could go to trial because, John, you had opportunity.
John Crim: In other words, I would be forced to defend myself?
Court: You know that part of your rights are that you do not have to say anything or do anything. This is guaranteed you by the Constitution. You need not do anything. If you have a defense to present, you can.
John Crim: What I am asking you, your Honor, am I by law permitted to have counsel at this time?
Court: The law gives you that right.
John Crim: I request counsel at this time, then, you (sic) Honor.
Court: Who do you want for counsel?
John Crim: At this particular time if it was to go to trial today--within the next week, I could not say, your Honor, for the simple fact I wouldn't know whether or not counsel could be provided on account or prior commitments.
Court: This is the way this matter works: You are entitled to counsel. I think you know that well enough. On showing to the Court that you are a pauper and have no funds and no property and no means, then the Court is required to appoint one for you, but until that time this is your individual right and prerogative to select whoever you want, and while I told you it takes some evidence, as far as the court is concerned, and most others that I know of, to show what property you have and what resources you have. In other words, it is your burden to prove that you are a pauper.
John Crim: Your Honor, I have a case in Starke County at this time which I have a pauper attorney on at this time.
Court: Well, O.K., then didn't you have to present evidence in court?
John Crim: Yes, sir, I did. I don't have the time to do so in this case.
Court: John, we are not going to argue these things. I think you did have time and I think you were advised.
John Crim: You say my counsel has not withdrawn himself yet, and he has made it clear to me that he will not be here so it contradicts itself, your Honor.
Court: Well, are you going to sign this waiver or shall we begin your trial by Jury?
John Crim: At this time I don't believe I will sign the waiver. I am asking for pauper counsel at this time to be represented.
Mr. Tankersley: May the State be heard, your Honor?
Court: Yes.
Mr. Tankersley: The defendant has raised here, as I see it, three issues: First, waiver of jury trial; secondly, the request for a change of venue; thirdly, the request for pauper counsel. He has already in court requested the waiver of a jury trial, and the Court has prepared a written waiver to that effect. Whether or not he waives jury trial at this time is immaterial to the State, or executes that waiver. The State will not consider that a jury trial is waived until he does sign the waiver on that matter. On the second point: the request for change of venue is clear out of order. There has to be a verified motion filed in open court and evidence presented. It has never been previously filed, presented, heard and determined by a court of justice--we are assuming, by this court--so any request for a change of venue is clearly out of order.
The request for pauper counsel: In my opinion this motion comes too late. This case was set for trial, I believe the docket shows, quite some time ago, and the defendant has had ample opportunity to confer with his attorney; he has been notified by his attorney of his withdrawal; he has not seen fit to secure any attorney to appear here today. In summary, I can only say that justice is a two-way road. The defendant should not be able to manipulate the court, jurors, the state, and all parties concerned were present today to try this case. It is justice we seek and it is justice that we are ready to render, and I do not think a defendant should be permitted to manipulate the court for his lack of diligence in being prepared today. If he wants to defend himself he has that right, but the state is ready to proceed to trial.
Court: I think the request for change of venue does come too late, as I also think the request for pauper counsel was not proper, because if for no other way you know by your own experience how you do this, and I am sure that I told you back in January what you necessarily would have to do, and this is February 24th, and as far as the Court is concerned, we can proceed to trial.
John Crim: Am I being denied counsel at this time, your Honor?
Court: You are denied pauper counsel at this particular time because I don't think there is any showing that you are a pauper.
John Crim: Well, in fact, I am, your Honor.
Court: Well, you have had opportunity to show to the Court that you own no property, that you couldn't afford and attorney. As a matter of fact, your contact with the Court is an indication that you were ready to re-marry and assume the obligation of a family. That doesn't indicate the status of a pauper. This is conflicting, too. And you had opportunity to have counsel file a petition for you, or you can file it yourself, making an affidavit showing that you have no property. So to say you are denied counsel is a little bit improper. We are not denying you counsel, but you are being denied pauper counsel this morning.
John Crim: Am I being granted time at this time, then, to obtain counsel?
Court: Well, here again: a week ago you said Mr. Lyons said he was going to withdraw. You have known this and you haven't had anyone contact the Court or to give us any notice.
John Crim: A week's time to prepare a criminal case such as is before the court at this time can't be prepared within a...
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