Dorsey v. State, 3--176A11

• Decision Date: 07 December 1976
• Docket Number: No. 3--176A11,3--176A11
• Parties: Reginald DORSEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 280

357 N.E.2d 280

171 Ind.App. 408

Reginald DORSEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--176A11.

Court of Appeals of Indiana, Third District.

Dec. 7, 1976.

Rehearing Denied Jan. 12, 1977.

Harriette Bailey Conn, Public Defender, David P. Freund, Bobby Jay Small, Deputy Public Defenders, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant Reginald Dorsey was convicted by a jury of the crime of first degree burglary. ¹ On appeal, appellant contends that the trial court lacked jurisdiction to try the case, that the trial court erred in denying appellant the right to defend himself, in permitting a witness not on the State's witness list to testify in rebuttal, in permitting testimony of other criminal activity and in admitting certain evidence challenged as hearsay.

Appellant first contends that the trial court lacked jurisdiction over the case and therefore erred in denying appellant's motion for a continuance. Appellant alleges that he filed a pro se petition for removal to the United States District Court for the Northern District of Indiana pursuant to 28 U.S.C.A. § 1446, that the District Court correctly characterized the petition as one pursuant to 28 U.S.C.A. § 1443, that the case was thereafter remanded to the State trial court, and that appellant subsequently filed his notice of appeal with the Seventh Circuit Court of Appeals.

Alleging these facts, appellant then contends that the filing of a removal petition in Federal court ² divests the State court of jurisdiction and that the State court remains divested of jurisdiction until the Federal court has remanded the case and the State court has received a certified copy of the remand order. Arguing analogously, appellant further contends that the filing of the notice of appeal with the Federal Circuit Court pursuant to 28 U.S.C.A. § 1447(d) deprives the State court of jurisdiction in much the same way as the filing of the removal petition with the District Court deprived the State court of jurisdiction.

However, the record does not disclose any of the Federal motions. An appellant has the burden of providing this court with a proper record disclosing error. Scruggs v. State (1974), Ind.App., 317 N.E.2d 807. Thus, it should be noted that the filing of the petition for removal is not shown in the record nor does the record indicate whether removal was effectuated pursuant to 28 U.S.C.A. § 1446 by giving written notice to the adverse parties and filing a copy of the petition with the clerk of the State court. Therefore, there is no indication that the State trial court was ousted from jurisdiction in the first instance. Moreover, it should be noted that after the State court is notified of the remand, it resumes jurisdiction and the defendant who desires to appeal the remand order must obtain a stay of proceedings. Fosdick v. Dunwoody (1st Cir. 1970), 420 F.2d 1140, n. 1; People v. Bogart (1970), 7 Cal.App.3d 257, 86 Cal.Rptr. 737.

Thus, the mere filing of a notice of appeal does not, in and of itself, serve to oust the State court of jurisdiction to proceed with the trial.

Appellant next contends that the trial court erred in denying him the right to represent himself at trial.

On April 10, 1975, appellant filed an affidavit rejecting his court-appointed attorney Paul Cholis, exercised his right to proceed pro se, and specifically waived his Sixth Amendment right to appointment of counsel. On the same day, the trial court took the following action: 'And now the Court overrules said rejection and the assistance of Paul Cholis is still assigned to this cause for further clarification upon date of trial.' Relying on Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, and Placencia v. State (1971), 256 Ind. 314, 268 N.E.2d 613, appellant asserts he had a constitutionally guaranteed right to represent himself at trial.

However, the record reflects the following proceedings on July 23, 1975:

'Comes now the defendant herein and appears in person and also appears by counsel, Paul Cholis.

'Comes also the State of Indiana and appears by Deputy Prosecutor Thomas Brunner.

'And now the defendant enters a plea of not guilty to the charge contained in the information.

'And now at the request of the defendant for speedy trial, this matter is set for trial on August 11, 1975.

'And now the Court has examined the informal motions mailed by the defendant from Jackson Prison and grants the motion for discovery and appointment of counsel to represent him.

'And all other motions are denied and this matter stands for trial.' (Emphasis added.)

Appellant's subsequent request for appointment of counsel renders the issue moot.

Appellant next contends that the trial court erred in permitting the State's rebuttal witness to testify when his name had not been included on the State's witness list. The proper remedy for a defendant to pursue when the State calls a surprise witness is to move for a continuance. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666; Garcia v. State (1973), Ind.App., 304 N.E.2d 812.

However, appellant contends that a continuance is the proper remedy only when the State has complied in good faith with pretrial discovery orders, citing Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60.

In Gregory v. State, supra, at 300 of 259 Ind., at 670 of 286 N.E.2d, our Supreme Court indicated that the reversal in the Johns decision was imposed as a sanction for both the blatant disregard of the court's order to disclose the names of witnesses and for the improper issuance of a search warrant. In the case at bar, the defendant has disclosed no such blatant conduct by the State to thwart discovery. Consequently, appellant's proper remedy was to ask for a continuance when the witness was called.

Appellant further contends that a continuance would not have sufficed in this instance due to the improper nature of the testimony sought to be presented. However, if appellant had requested and received a continuance, he could have deposed the witness, discovered the nature of his testimony, and been prepared to enter a timely objection. Moreover, the mere fact that the witness was not on the State's witness' list does not excuse appellant from making timely objections to any improper questioning of the witness. Thus, the fact that the testimony elicited from the witness may have been objectionable does not make the remedy of a continuance insufficient. Even without a continuance, the objections could have been made to any improper questioning.

Appellant next contends that the trial court erred in admitting evidence of other crimes alegedly committed by appellant.

During the State's case-in-chief, Sergeant Emery Molnar testified, over a general objection, that appellant was incarcerated in Michigan on August 9, 1974, for carrying a concealed weapon and felonious assault. A general objection stating no specific grounds is properly overruled. Beller v. State (1952), 230 Ind. 444, 104 N.E.2d 744.

State's witness Dale A. Bolin was permitted to testify, over objection that the question was 'improper in form', that he and appellant had committed approximately fifteen burglaries prior to August 1, 1974. Subsequently, Bolin testified as to the method used in the burglaries. Such evidence tended to establish a common scheme or plan and was therefore within the exception to the rule rendering prior criminal conduct other than that charged inadmissible on the question of guilt. Cobbs v. State (1975), Ind., 338 N.E.2d 632; Thompson v. State (1974), Ind.App., 319 N.E.2d 670.

During appellant's case-in-chief, he objected as being repetitious, the asking of the question whether appellant had been convicted of burglary. This objection was sustained and the State did not persist in the question. Additionally, appellant cannot urge a different ground for objection on appeal than was raised at trial. Tyler v....