Dobbins v. State

• Decision Date: 27 December 1999
• Docket Number: No. 49S00-9802-CR-109.,49S00-9802-CR-109.
• Citation: 721 N.E.2d 867
• Parties: Spencer DOBBINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

721 N.E.2d 867

Spencer DOBBINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9802-CR-109.

Supreme Court of Indiana.

December 27, 1999.

Katherine A. Cornelius, Marion County Public Defender's Office, Indianapolis, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, K.C. Norwalk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Spencer Dobbins appeals his conviction for murder on several grounds: that the trial court improperly refused his request to represent himself and incorrectly instructed the jury; his lawyer improperly failed to request a speedy trial; the prosecutor made improper remarks during closing argument; and there was insufficient evidence of guilt. Finding no trial court error, ineffective assistance of counsel or prosecutorial misconduct, and finding the evidence sufficient to support the conviction, we affirm.

This Court has jurisdiction over this direct appeal because the longest single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).

Background

The facts most favorable to the verdict reveal that on the evening of October 26, 1996, Defendant attended a birthday party at James Welch's home. Sometime during the evening, Lewis Bell and MarLissa Smith observed Defendant chasing Thearson White. After hearing one gunshot, they turned to observe Defendant fire a second shot at Mr. White.

After hearing two gunshots, Kelly Smith ran to Mr. Welch's front door and discovered Mr. White laying on the ground under a streetlight. Armed with a handgun, Defendant walked away from White and toward Kelly Smith. "Are you ready to tell on me?," he asked. (R. at 407.) She responded negatively and ran to a friend's house.

The State charged Defendant with Murder,¹ a Class A felony, and carrying a handgun without a license,² a Class A misdemeanor. The jury convicted Defendant of these charges and the trial court sentenced Defendant to 65 years. Defendant appeals his conviction.

Additional facts will be provided as needed.

Discussion

I

Defendant contends that he was denied his right of self-representation. To assist in analyzing this issue, we set out the events relevant to Defendant's challenge.

On November 19, 1996, the trial court appointed Eric Koselke as Defendant's counsel. The record reveals that Mr. Koselke was Defendant's sole public defender until February 12, 1997, when Robert Hill filed an appearance as co-counsel. At a motion in limine hearing on March 18, 1997, Mr. Hill appeared as Defendant's sole counsel. During this time, Defendant did not object to the presence of counsel nor did he request to proceed pro se.

At a hearing on another issue held April 8, 1997, the trial court addressed "Defendant's Pro Se Motion to Dismiss" in which Defendant contended, among other claims, that Mr. Koselke's representation was ineffective.³ The trial court ruled that Defendant's ineffective assistance of counsel claim was moot because Mr. Koselke had been replaced by Mr. Hill. Mr. Hill moved for a continuance because he was unprepared due to the departure of Mr. Koselke. The trial court granted the continuance.⁴ Again, Defendant did not request to proceed pro se at this time.

At an October 1, 1997, pre-trial conference, Defendant argued that the trial court failed to rule on his motion for a speedy trial, an assertion he contends was contained in "Defendant's Pro Se Motion to Dismiss." (R. at 77-80.) Although the trial court did not find a motion for a speedy trial, it addressed Defendant's pro se motion.

COURT: I don't see any motion where anyone has moved for a speedy trial.

DEFENDANT: You denied the one for a—the motion for a—the one you denied, you accepted that one, but you denied the other one. I had two motions that—I said I was—the reason why I filed this, because I was getting rid of an attorney because I wanted a fast and speedy trial, and I have been in here a year, messing around, you know. I put it on specifically what I wanted it for.

COURT: All right. Part 2 [of Defendant's pro se motion to dismiss] has already been denied, which is a lack of evidence to support probable cause, and I'll stand by that. Part 1 is Defendant's pro se motion to dismiss in which he asserts that trial counsel has been defective in that he has failed to pursue and secure a speedy trial by jury. Well, can you afford to hire your own lawyer?

DEFENDANT: No, I can't afford to hire my own lawyer.

MR. HILL: Mr. Koselke was on the case. Mr. Koselke and [Defendant] had disagreements—

COURT:—I can't understand that—

DEFENDANT:—he had too many cases. His caseload was over Trial Rule 24. I had to get rid of him myself, you know. He couldn't—

COURT:—well, I don't know that you're rid of him.

DEFENDANT: He couldn't protect me. He didn't act like he wanted to, you know.

(R. at 193-94.) Also, at this pre-trial conference, Defendant submitted two additional pro se motions: a "Motion for Copy of Court Chronology" and what appears to be another motion to dismiss.⁵ (R. at 84-85; 197-98.) The trial court denied the motion to dismiss, but granted Defendant a copy of the court chronology. The trial court then instructed Defendant to direct any future motions to his attorney, Mr. Hill, for proper filing. Defendant did not object.

At an October 3, 1997, hearing, Mr. Hill moved for another continuance to which Defendant objected and intimated a desire to proceed pro se.

MR. HILL: My client does not wish for me to make the motion for continuance and he objects to a continuance. I believe we presented this Wednesday. I did not make a motion at that time, but I think I'm going to today for the reasons I state. [to Defendant] I know you're going to be mad at me for this, but—

DEFENDANT:—I don't want no—I don't need no continuance

MR. HILL: He doesn't want one and that's clear.

DEFENDANT: I been in here too long already.

...

MR. HILL: My client vehemently—he's going to be mad at me for making this record—

DEFENDANT:—I can file it pro se, can't I? Go by myself, pro se?

MR. HILL: Well, yeah, I guess you could—

DEFENDANT:—I'm tired of sitting over—

MR. HILL: I'm trying to do the—I know you are. But I'm trying to do this because I think it's in your best interests.

DEFENDANT: I know what you're trying to do, you know. Be in your own best interests.

(R. at 211-12.) The trial court continued to recognize Mr. Hill as Defendant's counsel. The State joined defense counsel requesting a January trial date. Noting Defendant's objection, the trial court rejected a lengthy continuance and granted a two week continuance. The trial commenced on October 20, 1997.

The Sixth Amendment to the United States Constitution guarantees a defendant the right to the assistance of counsel. Implicit in this amendment is a defendant's right to self-representation— that is, to proceed propria persona. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)

; Sherwood v. State, 717 N.E.2d 131, 134 (Ind. 1999). The decision to proceed pro se must be made knowingly and intelligently because, by asserting this right, the defendant simultaneously waives his or her right to the assistance of counsel. See Faretta, 422 U.S. at 807,

95 S.Ct. 2525; Sherwood, 717 N.E.2d at 134. However, a defendant must first clearly and unequivocally assert his right of self-representation before claiming that such a right has been denied. See Broadus v. State, 487 N.E.2d 1298, 1304 (Ind.1986); Russell v. State, 270 Ind. 55, 61, 383 N.E.2d 309, 313 (1978); Anderson v. State, 267 Ind. 289, 294, 370 N.E.2d 318, 320 (1977). We explained in Anderson, that

[the request] must be `sufficiently clear that if it is granted, the defendant should not be able to turn about and urge that he was improperly denied counsel.' Meeks [v. Craven, 482 F.2d 465, 467-68 (9th Cir.1973) ]. If the rule were otherwise, trial courts would be in a position to be manipulated by defendants `clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.' Id.

Anderson, 267 Ind. at 294, 370 N.E.2d at 320-21.

A

Defendant contends he made two clear requests to proceed pro se. He claims his first request came during the October 1 hearing. While ruling on his pro se motion to dismiss, in which Defendant contended that Mr. Koselke's assistance was ineffective, the trial court asked Defendant if he could afford to hire an attorney.⁶ When Defendant responded that he could not, Defendant contends that the trial court should have "ruled on the motion [to proceed pro se ] or held a hearing on the issue." Appellant's Br. at 12. We, however, do not find that a pro se request was properly before the trial court.

First, Defendant's argument implies that the trial court failed to advise him of his right to self-representation. However, a trial court is under no obligation to advise a defendant of the right to self-representation. Russell, 270 Ind. at 60, 383 N.E.2d at 313 ("[T]here is no requirement that a Defendant be advised of the right of self-representation at any stage, under any circumstances, and that such advisements cannot even be characterized as a preferred procedure."). Nor is knowing, voluntary and intelligent waiver of the right of self-representation constitutionally mandated. Id.

Second, Defendant failed to assert clearly his right of self-representation at this hearing. Generally, a trial court should conduct a pre-trial hearing to determine a defendant's competency to proceed without counsel and to establish a record of a defendant's waiver of his right to counsel. See Russell, 270 Ind. at 64,

383 N.E.2d at 315. However, as a prerequisite to such an inquiry, a defendant must first make a clear and unequivocal request to proceed without counsel. Id. We decline to find that Defendant's response to the question posed by the trial court constitutes a...