Dockery v. State

Decision Date16 October 1974
Docket NumberNo. 3--1273A177,3--1273A177
Citation161 Ind.App. 681,317 N.E.2d 453
PartiesDonald Joseph DOCKERY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Leo J. Lamberson, Public Defender, South Bend, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

Defendant-appellant Donald Joseph Dockery was charged by affidavit in three counts with I) first degree burglary; II) robbery while armed; and, III) inflicting injury during the commission of a robbery. Appellant pleaded not guilty to each count of such affidavit. Following trial before a jury, appellant was found guilty of the lesser included offenses of entering to commit a felony (Count I) and theft from the person (Count III). He was found not guilty of the offense of robbery while armed (Count II). Appellant was sentenced to the custody of the Indiana Department of Corrections for concurrent periods of not less than one year nor more than five years for entering to commit a felony and not less than one year nor more than ten years for theft from a person. Thereafter, appellant's motion to correct errors was overruled and this appeal was perfected.

An examination of the evidence most favorable to the State discloses that during the evening of January 25, 1973, the prosecuting witness, John McClanahan, and one Craig Swieczkowski were watching television in McClanahan's residence located in St. Joseph County, Indiana. Also present at the time was McClanahan's wife. At approximately 9:30 P.M., McClanahan responded to a knock at the rear door of the house. Upon reaching the door, McClanahan drew aside a curtain and observed a man whom he later identified as appellant-Dockery standing directly in front of him at a distance of approximately one to three feet. Presently, the rear door was kicked inward. McClanahan testified that Dockery, who at the time was accompanied by two other unidentified individuals, moved quickly toward him while confronting him with a gun and that Dockery thereupon struck him in the chest causing him to fall down. McClanahan further testified that he was informed that 'the was a robbery', instructed to lie face down on the floor and told not to look up or his head would be 'blown off.' McClanahan's wife, who had responded to the commotion, was similarly instructed to lie face down on the floor. During a subsequent period of time portions of McClanahan's house were ransacked and both he and his wife were forced to crawl to separate rooms. McClanahan's testimony disclosed that the intruders were in search of marijuana and, indeed, were successful in seizing 'a good size bag full' from McClanahan's house. Aside from the marijuana, several other items of property were taken from McClanahan's residence. They included a stereo for which McClanahan paid $175; two wigs belonging to McClanahan's wife; an undetermined amount of clothing; a wristwatch; a piggy bank containing dimes and McClanahan's wallet which contained approximately forty or fifty dollars. The prosecuting witness further testified that when he returned to the living room of his house following the robbery, he noted that Craig Swieczkowski was not there and that he recalled that earlier 'someone made the comment of taking him hostage.'

The first issue to be considered is whether there was presented sufficient evidence as to the identification of the appellant to sustain the verdict of guilty.

Where questions with regard to the sufficiency of evidence are raised, this court is bound to consider only that evidence most favorable to the State, together with all reasonable inferences which may be drawn therefrom which will support a finding of guilty. Gatchett v. State (1973), Ind., 300 N.E.2d 665, 667; Lambert v. State (1969), 252 Ind. 441, 445, 249 N.E.2d 502, 18 Ind.Dec. 246. Moreover, a reviewing court will abstain from weighing the evidence or determining the credibility to witnesses. Hubble v. State (1973), Ind., 299 N.E.2d 612; Combs v. State (1973), Ind.App., 303 N.E.2d 289, 39 Ind.Dec. 585.

A conviction will be affirmed provided that there exists substantial evidence of probative value from which the trier of fact could have reasonably inferred that the accused is guilty beyond a reasonable doubt. Thomas v. State (1973), Ind., 298 N.E.2d 425; Bonds v. State (1973), Ind.App., 303 N.E.2d 686, 39 Ind.Dec. 634 (transfer denied).

Under direct examination by the State, McClanahan testified as follows as to his identification of appellant:

'Q The man that you described as the man that pushed open the door and had the gun on you and so forth is he present in the Courtroom?

'A Yes, sir, he is.

'Q Would you point him out, please?

'A Right there, Donald Dockery in the white shirt.

'Q Is there any doubt in your mind whatsoever Mr. McClanahan, that Mr. Dockery is the man?

'A None at all, sir.'

Further, under cross-examination this witness testified concerning the circumstances upon which his identification was based, as follows:

'Q You say that at the time that you opened this curtain at the back door that you saw Mr. Dockery here allegedly?

'A Uh-huh.

'Q How far away from the window was his face?

'A One to three feet.

'Q Was there any light outside of the door in the area?

'A Yes, sir, I have a light directly above in the middle of the breezeway, in the middle of the breezeway, there is no shade over it just a light bulb.'

The weight accorded testimony regarding a witness' positive identification of the defendant is a matter which falls exclusively within the province of the trier of fact. Hash v. State (1973), Ind., 291 N.E.2d 367; Chattman v. State (1974), Ind.App., 312 N.E.2d 529, 42 Ind.Dec. 442; Alexander v. State (1973), Ind.App., 304 N.E.2d 329, 40 Ind.Dec. 96. Moreover, it is to be noted that a conviction may be sustained upon the uncorroborated testimony of a single witness. Jaudon v. State (1970), 255 Ind. 114, 262 N.E.2d 851; Jones v. State (1970), 253 Ind. 480, 255 N.E.2d 219; Black v. State (1972), Ind.App., 287 N.E.2d 354, 32 Ind.Dec. 572.

Although McClanahan's testimony in which he positively identified the defendant was uncorroborated, it was nevertheless undisputed by any other testimony introduced during the trial. It must be concluded, therefore, that appellant's conviction stands supported by substantial evidence of probative value from which the trier of fact could reasonably infer that appellant is guilty beyond a reasonable doubt.

The next issue to be considered is whether the trial court erred in refusing to grant appellant's motion for a continuance made on the day upon which his trial was to commence.

An examination of certain entries made of record by the trial court discloses that on April 16, 1973, the defendant was advised with regard to the charges contained in the affidavit and was asked by the trial court if he had an attorney. The defendant replied, 'No, not at this time, but I would like to have Mr. Luber.' Thereafter, the trial court appointed County Public Defender Anthony Luber to counsel with the defendant and instructed the defendant to contact Mr. Luber. Arraignment was set for April 23, 1973. On that day, the defendant appeared by Attorney Patrick Brennan and Associates. Upon defendant's request, arraignment was continued to April 30, 1973. The trial court, in addition granted the request of Mr. Luber to withdraw his appearance for the defendant. On May 22, 1973, the cause was set for jury trial on September 12, 1973. On August 20, 1973, the following discussion was had before the trial court:

'THE COURT: You're Donald Dockery?


'MR. AMBLER: We want to withdraw our appearance.

'THE COURT: Attorney Patrick Brennan and Associates request permission to withdraw their appearance for the defendant. The defendant informs the Court that he is going to get another attorney. The Court informs the defendant that this case is set for trial on September 12, 1973 and that he will be expected to go to trial on that day. The defendant informs the Court that he has talked to Mr. Gonderman.

'THE DEFENDANT: Appoint me a lawyer.

'THE COURT: You say that you have talked to Mr. Gonderman?

'THE DEFENDANT: Appoint me a lawyer.

'THE COURT: I'm going to appoint a (an) attorney for you because you will go to trial on that day.

'The Court now appoints County Public Defender Leo Lamberson to represent the defendant until such time as the defendant has his own attorney. The defendant is informed that there will be no continuance for the trial for the reason that he does not have an attorney.

'THE DEFENDANT: I would like Mr. Luber.

'THE COURT: Did Mr. Luber talk to you about this?

'THE DEFENDANT: That is who I would like to talk too (to).

'THE COURT: Mr. Lamberson is up and it is up to you to go and see Mr. Lamberson at his office and he is in the Odd Fellow Building. She will give you a note as to where it is. Mr. Lamberson will appear for you right a way (sic).

'Now you know that you have to get ready for trial by September 12th so you better cooperate with him and in the meantime you get some other attorney and make sure that you tell him that you're going to trial on September 12th, do you understand that, Mr. Dockery?


On September 12, 1973, the day upon which the trial had been scheduled to commence, the following took place before the trial court:

'MR. LAMBERSON: Your Honor, please, I notice from the last minutes of the Court records here that this matter was set for trial for today. I had not been personally contacted by the defendant until last evening though he called me at the office once or twice before he came in.

'This being a serious case and involves up to life and with that seriousness which is involved and after talking to him and his mother I do not feel at this time, your Honor, that counsel is amply prepared for trial and the young man does...

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12 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • October 7, 1975 the proceeding is not for good cause when through the defendant's own neglect he has inadequate time to prepare. Dockery v. State (1974), Ind.App., 317 N.E.2d 453. In applying the standard of review for discretionary matters relating no continuances to the particular instances in this ca......
  • Clark v. Clark
    • United States
    • Indiana Appellate Court
    • May 13, 1980
    ...of such motion is within the discretion of the trial court, the ruling will not be reversed except for abuse. Dockery v. State, (1974) 161 Ind.App. 681, 317 N.E.2d 453. We shall not say that the court as a matter of law abused its discretion in not granting the continuance requested when no......
  • Carter v. State
    • United States
    • Indiana Supreme Court
    • August 25, 1987
    ...the trial court is satisfied that the evidence will be available, the court has the discretion to deny the motion. Dockery v. State (1974), 161 Ind.App. 681, 317 N.E.2d 453. Carter concedes that he was able to obtain some of the evidence prior to and during the trial but maintains that the ......
  • Fry v. State
    • United States
    • Indiana Appellate Court
    • July 9, 1975
    ... ... Generally, requests for continuance are not favored and will only be granted in furtherance of justice upon a showing of good cause. Johnson v. State, supra; Stock v. State [165 Ind.App. 4] (1974), Ind.App., 319 N.E.2d 871, 873; Dockery v ... State (1974), Ind.App., 317 N.E.2d 453, 458; Hopper v. State (1974), Ind.App., 314 N.E.2d 98, 103 ...         Account must be taken not only of the request of a defendant in a criminal case but also of the public interest in the prompt disposition of the matter. See: ABA ... ...
  • Request a trial to view additional results

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