Duncan v. State

• Decision Date: 26 November 1980
• Docket Number: No. 479S105,479S105
• Parties: James Paul DUNCAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 770

412 N.E.2d 770

274 Ind. 457

James Paul DUNCAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 479S105.

Supreme Court of Indiana.

Nov. 26, 1980.

Terry E. Johnston, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Cindy A. Ellis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, James Paul Duncan, was convicted by a jury of seven counts of unlawful dealing in schedule II controlled substances, Ind.Code § 35-24.1-4.1-2 (Burns 1975), and one count of unlawful dealing in schedule IV controlled substances, Ind.Code § 35-24.1-4.1-3 (Burns 1975). He was sentenced to seven terms of thirteen years and one term of ten years, the terms to be served concurrently. He now appeals raising the following issues:

1. Whether defendant was improperly required to proceed pro se in the trial even though he had not made a clear and unequivocal request to do so;

2. Whether certain testimony was erroneously admitted;

3. Whether the prosecutor's allegedly improper remarks denied defendant his right to a fair trial;

4. Whether defendant was denied his right to be present at all stages of the trial when the jury was permitted to view the evidence in his absence;

5. Whether the trial erred in failing to grant defendant credit for time served prior to sentencing; and

6. Whether the trial court erred in giving defendant multiple sentences for the violation of one statutory provision.

A summary of the facts from the record most favorable to the state shows that James Menn was an undercover police officer working with the Porter County Narcotics Unit. He was working with an informant named Dick Rush. Menn was introduced to defendant at Rush's apartment. A few days later, on August 3, 1977, Menn found out defendant had some drugs to sell. He went with Rush to an apartment where several people were present including defendant. While Menn was seated at the dining room table, defendant came into the room with a brown paper bag and dumped several bottles and pills out onto the table. Menn examined the drugs and then asked defendant how much he wanted for the total amount. Defendant said he wanted $540 for the whole lot.

Menn did not have that much money with him so he told defendant he would be back in a little while after he tried to collect more money. He was only able to collect $250 at that time. When he returned to the apartment, defendant gave him two of the bottles and fifty of the pills for the $250. They agreed that the remaining portion of the drugs would cost $290. The next day Menn again met defendant at his apartment and purchased the rest of the drugs for $290.

I.

Defendant first contends that he was unconstitutionally required to proceed to trial without being represented by an attorney. The record shows that defendant had been appointed pauper counsel, Bruce Dumas, several months prior to the trial. Dumas had interviewed defendant and filed several pretrial motions in this case. About ten days prior to the trial date, defendant indicated he was not happy with Dumas. The trial court held a hearing on August 17, 1978, and questioned defendant about his problems with his counsel. At that time, defendant stated he was not satisfied with Dumas's pretrial preparation and would rather represent himself than have Dumas represent him. However, after extensive questioning by the trial court and while he was on the witness stand, defendant stated he did want Dumas to represent him.

On the morning of the trial, defendant again told the trial court he did not want Dumas to represent him. The court then questioned both defendant and Dumas as to the extent of pretrial preparation and the specific reasons defendant was not satisfied with the representation. After further extensive questioning, the trial court determined that the representation had been adequate up to that time. He explained to defendant his constitutional rights regarding representation by counsel and explained that defendant did not have the right to have the court appoint someone defendant chose, but that it was up to the discretion of the court whom to appoint as pauper counsel. He asked defendant if he wished to proceed to trial with Dumas as counsel or in an advisory position, but defendant stated he did not want Dumas. He told the court he would like another attorney but definitely would not have Dumas. The trial court told defendant that the trial could not be postponed and so defendant would have to proceed with the trial pro se.

Defendant now alleges that he was forced to represent himself and was denied his constitutional right to representation by counsel. It is clearly established that a defendant charged with having committed a felony be allowed representation by counsel. German v. State, (1978) 268 Ind. 67, 373 N.E.2d 880; Gideon v. Wainwright, (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. An indigent, however, does not have an absolute right to counsel of his own choosing. This is discretionary with the trial court and can be reviewed only for abuse of that discretion. Shoulders v. State, (1978) 267 Ind. 538, 372 N.E.2d 168; State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d 70. The services of an attorney appointed by the court may not be forced upon a pauper defendant, but if the defendant refuses to be represented by the appointed counsel, he must find some method to employ his own counsel or proceed in propria persona. State v. Irvin, supra. A defendant may not through a deliberate process of discharging retained or appointed counsel whenever his case is called for trial disrupt sound judicial administration by such delaying tactics. United States v. Hampton, (7th Cir. 1972) 457 F.2d 299, cert. den'd. 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101.

Defendant argues that he was not advised of all the dangers and disadvantages of self-representation before he made the choice to represent himself. However, the record shows that defendant was aware of these problems since he stated to the court that he realized his own knowledge of the law was very limited and that he needed an attorney. It is clear that under the circumstances of this case defendant was provided with his constitutional right to court-appointed counsel, but voluntarily chose to proceed with the trial without representation. There was no error here.

II.

Defendant next argues that certain testimony of Officer Menn concerning a conversation with the informant, Rush, was hearsay and prejudicial and that the admission of this testimony denied him a fair trial. However, defendant did not object to this testimony on the basis of hearsay at the trial. It is well settled that error may not be predicated on the admission of testimony unless there was a timely and specific objection in the trial court. Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156; Rinard v. State, (1976) 265 Ind. 56, 351 N.E.2d 20. Thus, any error on the basis of hearsay was waived.

Defendant further complains that this testimony was highly prejudicial and irrelevant. The informer had allegedly stated that he knew the drugs defendant was selling were of good quality because they were stolen from a drugstore. Defendant has not shown how this statement was prejudicial since there is no indication in it that defendant was the one who actually committed the robbery. The burden is on defendant to show how his substantial rights were prejudiced. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686.

III.

Defendant next alleges that the prosecutor made several improper remarks during the trial, during his closing argument and during voir dire and that these remarks denied him a fair trial. During the final argument, the prosecutor made a comment to the effect that a $540 total purchase was big time drug dealing. He also made allegedly improper comments on the profitability and disgusting nature of drug dealing and referred to defendant as a drug dealer. However, the record shows that defendant made no objection to any of these remarks at the time they were made. It is axiomatic that if the defendant fails to object to the prosecutor's closing remarks he waives any error resulting from the remarks. Pavone v. State, (1980) Ind., 402 N.E.2d 976; Womack v. State, (1978) Ind., 382 N.E.2d 939.

Defendant also failed to object to the prosecutor's comments and questions during voir dire and has waived any error therein. At one point during the trial, the prosecutor referred to tape recordings which were never offered into evidence. Defendant now complains that this remark was improper and implied to the jury that they had not heard all of the evidence. However, there was no objection to this comment at the time it was made and any error here is also waived. We find no showing in any of the above instances of fundamental error which would require us to overlook the well established rules of procedure requiring timely and specific objections at trial. Gee v. State, (1979) Ind., 389 N.E.2d 303; Decker v. State (1979) Ind.App., 386 N.E.2d 192.

IV.

After the state had completed the direct examination of its chief witness, Officer Menn, the prosecutor asked that the jury view all the evidence which had been admitted up to that point. The exhibits consisted of several packages containing the drugs allegedly purchased from defendant, reports from the toxicologist, and a picture of defendant. The trial court stated that there would be a short recess and the jury accompanied by the bailiff, would be sent to the jury room to view the exhibits rather than have them passed back and forth in the courtroom.

Defendant now argues that this procedure was improper and denied him the right to be present at all critical stages of his trial. He argues that the exhibits could have been subjected to improper use by the jury. However, there was no objection to this procedure at trial and for the reasons discussed in...