Fry v. State

• Citation: 330 N.E.2d 367,165 Ind.App. 1
• Decision Date: 09 July 1975
• Docket Number: No. 2--1174A269,2--1174A269
• Parties: Paulette FRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 367

330 N.E.2d 367

165 Ind.App. 1

Paulette FRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--1174A269.

Court of Appeals of Indiana, Third District.

July 9, 1975.

Stephen J. Cuthbert, Tippecanoe County Public Defender, Lafayette, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Harry J. Watson, III, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Following a jury trial, defendant-appellant Paulette Fry was found guilty of the offense of uttering a forged instrument as defined in IC 1971, 35--1--124--1, Ind.Ann.Stat. § 10--2102 (Burns 1956). The trial court then ordered that appellant be committed to the custody of the Superintendent of the Indiana Women's Prison for a period of not less than two nor more than fourteen years; that she be fined in the sum of $10; and that she satisfy costs. Appellant timely filed her motion to correct errors which was overruled, and the present appeal was perfected.

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

An examination of the record discloses that on January 25, 1974, the trial court, having determined that appellant was 'financially unable to employ counsel of her own choosing', appointed Stephen J. Cuthbert, Public Defender of Tippecanoe County, to represent her. Trial was subsequently set to commence on April 16, 1974, at 9:30 A.M. At such time, appellant made an oral motion for continuance, out of the presence of the jury and before the State presented its case-in-chief; and stated as grounds therefor that on the previous day she had personally contacted and retained counsel at her own expense; that her retained counsel was unable to attend due to prior commitments; and that he would require at least a week in order to prepare for trial. After questioning appellant concerning her financial ability to retain counsel, the trial court overruled appellant's motion.

Where, as in the case at bar, the motion for continuance is not based upon statutory grounds, the ruling on such motion is within the sound discretion of the trial court. King v. State (1973), Ind., 296 N.E.2d 113, 115; Johnson v. State (1970), 254 Ind. 465, 467, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870; Reed v. State (1973), Ind.App., 300 N.E.2d 108 (transfer denied); Trinkle v. State (1972), Ind.App., 288 N.E.2d 165 (transfer denied).

Such ruling must be upheld in the absence of a demonstration of a clear abuse of discretion. 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 (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 Standards, Speedy Trial, § 1.3, at 5 (Approved Draft, 1968).

Appellant contends that the trial court's refusal to grant her request for continuance compelled her to submit to representation by appointed counsel when she professed to have the ability to employ counsel at her own expense.

We must, however, conclude that upon the facts presented the refusal of a continuance and concomitant rejection of a request for substitution of counsel was within the sound discretion of the trial court and did not amount to an abuse thereof. In United States v. Cozzi (7 Cir., 1965), 354 F.2d 637, at 639, the court stated that,

'An accused's Sixth Amendment right to select his own counsel does not permit of arbitrary action which obstructs orderly procedure in the courts. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936. It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make a new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence. * * *.'

It should be noted that appellant, in making her request for continuance, did not express dissatisfaction with her court-appointed counsel who had represented her for almost three months prior to trial; nor did she offer any reason for desiring a change in counsel other than the fact that she had been recently employed and was of the opinion that she could accumulate the necessary funds. This, it appears, was a good deal less than a certainty, particularly in view of the short period during which she had been employed and the imminent possibility of conviction of an offense for which she might be confined for a substantial length of time. Counsel purportedly retained by appellant had entered no appearance in the cause and there was no indication that the trial court was otherwise contacted by him. Furthermore, an examination of the entire record discloses that appellant was ably represented by her court-appointed counsel during trial. Under these circumstances, we are of the opinion that the expeditious administration of justice outweighed appellant's desire for the last minute substitution of a different attorney.

See: United States v. Hampton (7 Cir., 1972), 457 F.2d 299; State v. Irvin; Mogle; McAllister (1973), 259 Ind. 610, 291 N.E.2d 70.

The next issue to be considered is whether the trial court erred in permitting the introduction of evidence tending to establish the commission by appellant of an offense other than the crime charged.

In this regard, appellant first contends that the trial court erred in admitting over objection State's Exhibit No. 6, a Master Charge cash advance memorandum, for the reason that it constituted evidence of a separate offense unrelated to the offense charged.

The information by which appellant was charged, omitting caption and formal parts, reads as follows:

'That on or about the 21st day of November, 1973, at the County of Tippecanoe in the State of Indiana, one PAULETTE FRY did then and there unlawfully, feloniously, falsely, fraudulently, and knowingly make, forge, and counterfeit a certain check, and did then and there unlawfully, feloniously, falsely, and fraudulently utter, publish, pass, endorse and deliver to Ann Irwin, who was then and there acting as the agent and employee of Lafayette National Bank, as true and genuine said false, forged, and counterfeit check which was of the following tenor, to wit:

                    D. James Morre                               2773
                 Mrs. D. James Morre
                   1112 Cherry Lane                             71-96
                                                                -----
                West Lafayette, Indiana 47906         11-21 1973 712
                                                      ----------
                Pay To The                              00
                Order Of Mary R. Hyland            $ 350--
                        ------------------
                  Three hundred fifty 00 ________________ Dollars
                -----------------------------------------------------
                   Lafayette National Bank
                     Lafayette, Indiana
                Memo ________________________   Mrs. D. James Moore
                Endorsement: Mary R. Hyland
                -----------------------------------------------------
                

with intent then and there and thereby feloniously, falsely, and fraudulently to defraud the said Lafayette National Bank, the said Paulette Fry then and there well knowing the said check and endorsement to be false, forged, and counterfeit.'

An examination of the evidence discloses that on the morning of November 21, 1973, a woman later identified as appellant-Paulette Fry presented a check at the Columbia Street office of the Lafayette National Bank in Lafayette, Indiana. The check which was introduced into evidence as State's Exhibit No. 1, was drawn in favor of one 'Mary R. Hyland' in the amount of $350; the endorsement appeared as 'Mary R. Hyland'; and the signature of the maker appeared as 'Mrs. D. James Moore .'

Ann Irwin, a teller at the bank in question, testified that she requested appellant to present identification and that appellant, in turn, displayed an Indiana driver license issued to and bearing the signature of 'Mary R. Hyland.' In addition, other items consisting of a Master Charge card, an L. S. Ayres & Co. charge card, and a registered account card for Citizens Bank & Trust Company, all bearing Mary R. Hyland's name, were offered as identification. The teller noticed that the description of personal characteristics indicated on the driver's license did not correspond to that of appellant and subsequently summoned the police. Appellant was thereafter taken into custody and placed under arrest.

During trial, Dr. D. James Moore testified that during November, 1973, three unsigned checks had been taken from a checkbook which was in a briefcase which he kept in his office at Purdue University. He further testified that the check which had been introduced as State's Exhibit No. 1 was among the checks that were missing and that the check did not bear his signature. Mrs. D. James Moore testified that the signature on the check was not her own and that the last name was, in fact, misspelled.

Mary Rose Hyland testified that she had never seen the check before and that the signature by which the check was endorsed was not her's. She further stated that the driver license (State's Exhibit No. 2), L. S. Ayres & Co. charge card (State's Exhibit No. 3), Master Charge card (State's Exhibit No. 4), and registered account card for Citizens Bank & Trust Company (State's Exhibit No. 5), belonged to her; that she found that such items were not in her possession on approximately November 11, 1973; and that she had not authorized anyone to use the items.

Officer James W. Withers of the Lafayette Police Department testified that following appellant's arrest and...