Drollinger v. State

• Decision Date: 26 August 1980
• Docket Number: No. 778S146,778S146
• Citation: 408 N.E.2d 1228,274 Ind. 5
• Parties: Roger C. DROLLINGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1228

408 N.E.2d 1228

274 Ind. 5

Roger C. DROLLINGER, Appellant, v. STATE of Indiana, Appellee.

No. 778S146.

Supreme Court of Indiana.

Aug. 26, 1980.

Michael T. Conway, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Roger C. Drollinger was charged in Parke Circuit Court with four counts of first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). The charges arose out of the February 14, 1977 shotgun slayings of Gregory Brooks, Ralph Spencer, Raymond Spencer and Reeve Spencer in their mobile home near Hollandsburg, Indiana. Daniel Stonebraker, Michael Wright and David Smith were also charged in connection with these crimes. After a change of venue to the Blackford Circuit Court, appellant Drollinger was tried separately to a jury. He was convicted on all four counts, and was sentenced by the trial court to four life sentences, to be served concurrently.

Appellant presents eleven issues for our consideration on this appeal. These issues concern: (1) whether the trial court erred in denying appellant's motions for continuances; (2) whether the trial court should have granted a second change of venue or, alternatively, a continuance, due to pretrial publicity; (3) whether the trial court erred in denying appellant's written request to have the jury sequestered during trial; (4) whether the trial court erred in admitting into evidence certain photographs; (5) whether certain testimony from witness James Lyons should have been admitted into evidence; (6) whether the trial court erred in admitting into evidence State's Exhibit number seventy-seven, a .38 caliber revolver; (7) whether the trial erred in granting the State's motion in limine concerning witness Kevin Rhodes; (8) whether the trial court should have granted a mistrial or admonished the jury as a result of alleged prosecutorial misconduct; (9) whether the trial court erred in refusing two of Drollinger's tendered instructions; (10) whether appellant was denied due process, considering the "totality" of the alleged errors set out above; and (11) whether the evidence is sufficient to sustain the convictions.

I.

Appellant Drollinger first argues the trial court erred in denying his motions for continuances filed August 23, September 1, and September 6, 1977. He contends the geographical distance between co-counsel and a need for more time to prepare the defense and depose two co-defendants necessitated the requested continuances.

A motion for continuance based on non-statutory grounds, such as an alleged need to have more time for trial preparation, is addressed to the trial court's discretion. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324, 1326; Minton v. State, (1978) Ind., 378 N.E.2d 639, 641; Simpson v. State, (1978) Ind., 381 N.E.2d 1229, 1233. See Miller v. State, (1978) Ind., 372 N.E.2d 1168, 1170-71. See also Mitchell v. State, (1979) Ind., 398 N.E.2d 1254, 1256-57. Appellant correctly asserts that a criminal defendant generally has the right to depose prosecution witnesses. Amaro v. State, (1968) 251 Ind. 88, 94, 239 N.E.2d 394, 397. Further, the Sixth Amendment's guarantee of the effective assistance of counsel contemplates that such counsel will have an adequate amount of time to prepare to meet the charges against his client. See Powell v. Alabama, (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Baker v. State, (1967) 248 Ind. 85, 221 N.E.2d 432. The record in this case, however, does not reveal a denial of the right to the effective assistance of counsel, nor of the right to depose prosecution witnesses.

To properly resolve this issue, we must examine the procedural background against which these motions for continuances were made. The charges in this case were filed on March 9, 1977. Drollinger was arrested approximately one month later, and appeared for arraignment on May 26, 1977. At that time, the court set the case for jury trial on August 30, 1977, and formally appointed attorney Nile Stanton of Indianapolis as pauper counsel for Drollinger. It appears from the record, however, that Stanton had been Drollinger's attorney in this case and had acted on his behalf from the time the charges were filed. On July 5, 1977, Stanton, on behalf of appellant Drollinger, filed a "Motion for Speedy Trial," which consented to the August 30 trial date and purported to raise a continuing objection to the case being continued after August 30. Attorney Stanton also moved the court to appoint co-counsel to assist him. These motions were granted, and on July 14, 1977, the court appointed David Ford of Hartford City as co-counsel. That same day, the trial court received a letter from Stanton, dated July 13, stating that Stanton had a schedule conflict with respect to the August 30 trial date. Stanton advised the court in this letter that he would continue to prepare for Drollinger's August 30 trial, and would contact certain attorneys to discuss Drollinger's case, in anticipation of his having to withdraw as Drollinger's attorney. On July 26, 1977, Stanton filed a verified petition asking for leave to withdraw from the case after the July 29 pretrial conference. This petition stated in part:

2. Counsel has worked closely with Indianapolis attorney Mike Conway on this case, and attorney Conway is prepared, willing and able to promptly take over the role of chief defense counsel in this cause.

(a) I have catalogued, indexed, and cross-indexed all facts in my possession pertaining to this case and am delivering several volumes of such materials, with the indexes, to attorney Conway.

(b) I have met with and discussed this case at length with attorney Conway and have discussed with him all matters pertaining to trial tactics, the facts, legal issues, etc.

(c) I have personally seen attorney Conway's written work and have seen him during trial; and, in my professional opinion, he has expertise in criminal law and can competently and zealously represent (the) defendant in this case.

4. I shall appear and participate in the pretrial conference scheduled for July 29, 1977, as attorney Conway plans to do also; and, thereafter, even after my withdrawal, I shall from time to time assist attorney Conway, where requested by him, at my own expense.

Record at 70-71. The trial court granted this petition, and Conway was appointed a Drollinger's co-counsel on July 29. Attorney Ford remained on the case throughout the pretrial and trial proceedings.

At the July 29 pretrial conference, Stanton told the court that the prosecutor had informed him that Drollinger's co-defendants would be testifying at Drollinger's trial. He further indicated that a "substantial delay" might therefore be requested but "if so, that would be made within seven to ten days." This occurred one month before the date set for trial, five weeks before the trial actually began, and three weeks before defense counsel first asked for a continuance. Stanton also informed the court at the pretrial conference that he and Conway had met "at great length" to talk about the case, the nature of the defense, problems to be anticipated, possible motions, to be made or filed, and jury selection considerations. Further, Stanton indicated he had developed for Conway "four volumes of facts of the case which are indexed, cross-indexed as to date, place, event and so on," and would continue to informally assist Conway with the case.

On August 19, 1977, the State filed a supplemental discovery response which included the following:

"That the State now wishes to amend its Answer in that within the past two weeks the State through the attorneys representing Daniel R. Stonebraker, Michael W. Wright and David W. Smith, were advised that in the event any or all of the three defendants agree to appear and testify for and on behalf of the State in the case of State of Indiana vs Roger C. Drollinger, being four charges of First Degree Murder now pending in the Blackford Circuit Court, Hartford City, Indiana, that the State would recommend on their plea of guilty, one First Degree life sentence; one Second Degree life sentence and two Second Degree sentences carrying fifteen to twenty-five years each."

Record at 90. On August 23, the prosecution and defense appeared for a second pretrial conference. At that time, defense counsel filed a motion for continuance. The trial court granted a one week continuance and re-set the trial date for September 6, 1977.

On August 26, defense counsel filed motions for leave of court and notices of his intent to depose Daniel Stonebraker and Michael Wright, two of Drollinger's co-defendants. On September 1, defense counsel requested another continuance. The court indicated to defense counsel at that time that it would not continue the trial, but that it would make every effort to aid in the taking of the requested depositions. Attorney Conway told the court that, if the depositions could not be completed before the trial began, it "would be fine during trial sometime." Record at 229. The record further reflects the following:

"And be it further remembered that afterwards, to-wit: on the 2nd day of September, 1977, the same being the 210th Judicial Day of the 1977 Term, the following proceedings were had in this cause and entered of record in the Civil Order Book No. 68, at page 258, to-wit:

Comes now the Court and contacts Stephen Trueblood, attorney for the co-defendant, Michael Wright, and the Court is now advised by Mr. Trueblood that any proposed depositions that are attempted to be taken, said attempt should be made where the co-defendant is currently incarcerated. The Court now attempts to contact Mr. Donald Gibson, attorney for the co-defendant, Daniel Stonebraker, and Mr. Gibson is out of his office at this time attending a seminar and the Court is advised that Mr. Gibson plans to be in Blackford County on the 6th day of September, 1977, for the...