Dixon v. State, No. 181S7

Docket NºNo. 181S7
Citation437 N.E.2d 1318
Case DateJuly 30, 1982
CourtSupreme Court of Indiana

Page 1318

437 N.E.2d 1318
Robert Lee DIXON, Appellant,
v.
STATE of Indiana, Appellee.
No. 181S7.
Supreme Court of Indiana.
July 30, 1982.

Page 1319

Perry H. Harrold, Wilson, Coleman & Roberts, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Robert Lee Dixon was tried by jury in the Marion Superior Court and found guilty of theft, a class D felony, and was also found by the jury to be an habitual criminal. The court sentenced the defendant to four (4) years for the theft conviction to which was added an additional thirty (30) years for the finding of habitual criminal.

Appellant raises eleven issues for our consideration in this direct appeal, as follows: 1) the constitutionality of the habitual criminal statute; 2) error of the trial court in denying defendant's motion to represent himself; 3) denial of defendant's motion for a mistrial due to irregularities in the verdict form of the jury; 4) refusal of the trial

Page 1320

court to inform the jury as to the sentence imposed upon the finding of habitual criminal; 5) error of the trial court in overruling defendant's motion requesting that he be tried by the regular judge rather than a pro tem; 6) the finding that a theft conviction of the defendant was a felony under the habitual criminal portion of the trial; 7) error of the trial court in giving its final instruction No. 15(a) concerning flight; 8) error of the court in admitting State's Exhibit 5 into evidence; 9) failure of the trial court to enforce the defendant's rights under Ind.R.Crim.P. 4; 10) sufficiency of the evidence; and 11) inadequacy of counsel.

The facts most favorable to the State showed generally that on May 27, 1979, Indianapolis Police Officer Kenneth Evans had been assigned to traffic control on 10th Street, in connection with the Indianapolis 500 Mile Race. The date was on a Memorial Day Sunday. Officer Evans was in uniform but was in his personal Chevrolet automobile. He had been relieved of duty at the race track and was on his way to his home on the south side of Indianapolis. On his way home, he decided to patrol the yards of several trucking companies on the route because he said he was aware that there were problems in this particular area. He stopped at a trucking company located in the 700 block of West Street in the city of Indianapolis, and then proceeded to a second trucking company after which he approached the third company, the Daily Delivery Service. While at the Daily Delivery Service truckyard, Officer Evans noticed a 1971 blue Chrysler automobile sticking out from between two trailers. He decided to block its path with his vehicle so that he could investigate the activities of the driver. As he pulled his vehicle across in front of the Chrysler, he saw the defendant emerging from a trailer with a large box in his hands. He ordered the defendant to stop but the defendant did not do so. The defendant dropped the box near the back door of the truck, got into his Chrysler automobile and tried to leave the area by backing around the tractor trailer. Officer Evans pulled his gun and shot the two left tires on the automobile, causing them to go flat and causing the car to veer sharply and crash into and under one of the trailers. The defendant then attempted to flee on foot but the officer pursued him and, pointing his gun at the defendant, ordered him to stop. The defendant then stopped and surrendered to the officer. Officer Evans called for assistance and continued his investigation at the scene. In defendant's Chrysler automobile and in the area near the car and trailer, Evans, and other police assisting him, recovered five boxes containing merchandise, which the evidence revealed came from a trailer belonging to the Daily Delivery Service Company. A broken seal from the doors of the trailer was lying on the ground adjacent to the trailer.

I

Prior to trial defendant filed a motion to dismiss Count II, habitual offender, based upon the claim that the underlying felonies in the present charge were the same underlying felonies used in a prior habitual charge against defendant in which defendant was found not to be a habitual criminal by the jury trying that cause. He claims that he is subjected to double jeopardy. This same issue was decided against defendant recently in Harris v. State, (1981) Ind., 427 N.E.2d 658, and Baker v. State, (1981) Ind., 425 N.E.2d 98. In both Harris and Baker, this Court found that even though the underlying felonies used in the present case to enhance defendant's sentence had been used in a prior habitual charge, of which defendant was acquitted, double jeopardy does not bar the present habitual criminal finding since the habitual charge is not a prosecution, but rather, a sentence enhancement for the theft conviction in the case at bar. Justice Hunter wrote in Baker :

"Because the habitual offender statute does not create new or separate offenses and the habitual offender proceeding does not deal with the underlying facts on the substantive charge, the use of prior convictions at more than one habitual offender proceeding does not constitute double jeopardy .... There are no

Page 1321

constitutional or collateral estoppel barriers to prevent the state from exacting that punishment each time a different felony is committed as long as the prior convictions do still exist."

Id. 425 N.E.2d at 101.

There is no trial court error here.

II

On the morning of trial and during voir dire of the jury, the defense indicated it had several matters it wished to discuss with the trial judge. The defendant discussed one matter himself in which he told the judge that he did not wish to have Mr. Lawrence represent him but preferred to represent himself. The defendant indicated he had written a letter to Judge Gifford, the regular Judge of the court, in which he had stated he was dissatisfied with the representation he was receiving from Mr. Lawrence and indicated he was filing charges with the Indiana Supreme Court Disciplinary Commission against Mr. Lawrence. He stated in the letter that, "If there is nothing that can be done without proper representation, I'd like to again make a request for a new attorney and ask that it be as quickly as possible." [emphasis in original] Nothing came of the charges filed by defendant against his attorney with the Disciplinary Commission. A different letter defendant wrote to Judge Gifford asking that he be allowed to represent himself, was not in the record but apparently it is not denied that such letter was sent to the judge. There was a short discussion by the judge, defendant, and his attorney, following which the judge told defendant that the jury was there and they were ready to go to trial, that the judge was satisfied that the defendant would receive a fair trial by the jury and he was not, at that time, going to permit the defendant to represent himself. Appellant now claims that the trial court erred pursuant to the holding of the United States Supreme Court in Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. The issue presented here was decided by this Court in Russell v. State, (1978) Ind., 383 N.E.2d 309, when a similar motion was made by defendant on the morning of trial. In Russell this Court held that a decision to proceed pro se is relinquishment of Sixth Amendment right to counsel. We held that a hearing on the question of defendant's self-representation need be had only if such right is properly asserted by clear and unequivocal request within a reasonable time prior to the first day of trial. We further held that requests on the morning of trial are per se untimely:

"It is one thing to recognize that this right exists as a matter of the defendant's considered will and intelligent choice, as discussed in Faretta ; it is another thing to take an absolutist view of the personal autonomy interest which would enshroud last minute whim and caprice as a constitutional guarantee."

Id. 383 N.E.2d at 314.

The trial court did not err in refusing defendant's demand.

III

On Count I, charging defendant with theft, the jury returned a verdict of guilty. The jury foreman also signed and returned into open court, the verdict forms for the included offenses of guilty of trespass and guilty of conversion. The court invited the parties to poll the jurors but both the State and the defendant declined to do so. The trial then proceeded with the habitual criminal portion of the trial. After the State had rested on this count, a discussion was held between the court and counsel concerning the return of the jury's verdicts on Count I. Defendant moved for a mistrial on the grounds that the return of the verdicts in Count I were inconsistent since the jury had returned a verdict of guilty of the crime of theft as well as the included offenses. The court chose to treat the signed verdict forms of trespass and conversion as surplusage and denied the motion for mistrial.

Defendant's contention that the return of verdict forms finding the defendant guilty of theft and of the included offenses, thereby impeaching the jury's verdict of theft, is without merit. It can as well be presumed

Page 1322

that the jury felt that since the defendant was guilty of theft he was also guilty of the included offenses named in the other verdicts. The proper procedure would have been to object to the return of the verdicts at the time the jury returned them and have the jury correct the verdicts at that time. The court properly found the return of the verdicts on the included offenses to be surplusage, however, and there was no requirement to order a mistrial. Compare Hogan v. State, (1980) Ind., 409 N.E.2d 588; Grimm v. State, (1980) Ind., 401 N.E.2d 686, 687.
IV

It is defendant's contention that the court erred by refusing to inform the jury of the penalty for a finding of...

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32 practice notes
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...to present such a situation on the day of trial and can properly be disposed of summarily by the court. Dixon v. State, (1982) Ind., 437 N.E.2d 1318. The record shows that the representation of counsel here was professional and more than adequate. Defendant was well prepared, well aware of ......
  • People v. Sailor
    • United States
    • New York Court of Appeals
    • June 4, 1985
    ...(see, Linam v. Griffin, 685 F.2d 369 [10th Cir.], cert. denied 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447, supra; Dixon v. State, 437 N.E.2d 1318 [Ind.]; State v. Lee, 660 S.W.2d 394 [Mo.Ct.App.]; see also, People v. Maldonado, 82 A.D.2d 576, 442 N.Y.S.2d 567, lv. denied 55 N.Y.2d 751, 4......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...be clear and unequivocal and must be timely made. Requests made the day of trial are, per se, untimely. Dixon v. State, (1982) Ind., 437 N.E.2d 1318. In this case, both Averhart and Hutson made the request during the trial and did Page 690 not clearly and unequivocally assert that they desi......
  • Fair v. State, No. 49S04-9312-CR-1439
    • United States
    • Indiana Supreme Court of Indiana
    • December 30, 1993
    ...impounded automobile if the search is designed to produce an inventory of the vehicle's contents. See also Dixon v. State (1982), Ind., 437 N.E.2d 1318. Because the police are performing an administrative or caretaking function rather than a criminal investigatory function when they impound......
  • Request a trial to view additional results
32 cases
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...to present such a situation on the day of trial and can properly be disposed of summarily by the court. Dixon v. State, (1982) Ind., 437 N.E.2d 1318. The record shows that the representation of counsel here was professional and more than adequate. Defendant was well prepared, well aware of ......
  • People v. Sailor
    • United States
    • New York Court of Appeals
    • June 4, 1985
    ...(see, Linam v. Griffin, 685 F.2d 369 [10th Cir.], cert. denied 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447, supra; Dixon v. State, 437 N.E.2d 1318 [Ind.]; State v. Lee, 660 S.W.2d 394 [Mo.Ct.App.]; see also, People v. Maldonado, 82 A.D.2d 576, 442 N.Y.S.2d 567, lv. denied 55 N.Y.2d 751, 4......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...be clear and unequivocal and must be timely made. Requests made the day of trial are, per se, untimely. Dixon v. State, (1982) Ind., 437 N.E.2d 1318. In this case, both Averhart and Hutson made the request during the trial and did Page 690 not clearly and unequivocally assert that they desi......
  • Fair v. State, No. 49S04-9312-CR-1439
    • United States
    • Indiana Supreme Court of Indiana
    • December 30, 1993
    ...impounded automobile if the search is designed to produce an inventory of the vehicle's contents. See also Dixon v. State (1982), Ind., 437 N.E.2d 1318. Because the police are performing an administrative or caretaking function rather than a criminal investigatory function when they impound......
  • Request a trial to view additional results

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