Fulks v. State

• Decision Date: 13 October 1970
• Docket Number: No. 569S114,569S114
• Citation: 255 Ind. 81,23 Ind.Dec. 138,262 N.E.2d 651
• Parties: Cecil L. FULKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 651

262 N.E.2d 651

255 Ind. 81

Cecil L. FULKS, Appellant, v. STATE of Indiana, Appellee.

No. 569S114.

Supreme Court of Indiana.

Oct. 13, 1970.

Robert A. Mucker, Richard T. Heide, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, William F. Thompson, Aaron T. Jahr, Deputy Attys. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellant was charged by affidavit with the crime of armed robbery. Trial by jury resulted in a verdict of guilty. Judgment was rendered by the court sentencing the appellant to ten years in the Indiana State Prison.

The evidence in this case discloses the following facts:

On the 11th day of April, 1968, one Jane E. Higgins was employed as a cashier at Cinema West Theater in West Lafayette, Indiana, operated by Fourth Avenue Corporation. At about 9:40 P.M. Miss Higgins had closed the box office at the theater and had counted most of the money when two men approached the box office with guns in their hands. One of the men, whom Miss Higgins identified as Cecil L. Fulks, the appellant in this case, stood directly in front of her and handed her a paper sack. Miss Higgins placed the theater money in the paper sack and handed it to the man identified as the appellant.

While the robbery was in progress one Steven Rosendahl, the theater manager One Joseph Lee Kennon testified he was employed as a doorman at the theater; that he observed two men, one of whom he identified as the appellant, approach the box office with guns and obtain a paper bag containing money from Miss Higgins.

came out of his office and saw a man [255 Ind. 83] whom he identified as the appellant and another man standing in front of the box office. Both men were holding guns. He identified the appellant as the one who received a paper bag full of money from Miss Higgins. Mr. Rosendahl was able to determine by a check of the beginning cash and of the tickets sold that $826.50 had been taken.

Following the appellant's arrest on a charge of armed robbery, he was taken to the Lafayette City Court for preliminary hearing. The Witness Kennon was present in the City Court at that time at the request of police officers who, after the hearing, asked Mr. Kennon if he saw anyone who looked familiar, to which he replied he did.

Appellant first claims error in that at the time of his arrest and interrogation he was not advised of his right to counsel, and that he was interrogated without counsel even though he had requested counsel to be present. It is true that under the authority of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, no confession, inculpatory statement or exculpatory statements made by a defendant may be used against him unless he has first been advised of his constitutional right to counsel. However, in the case at bar the appellant denied participation in the crime charged and at no time confessed any participation in the crime, nor did he make any statements from which his participation in the crime could be implied. Although the record in this case indicates the appellant did not receive the constitutional warnings required in the Miranda case, he has failed to demonstrate to this Court that he was harmed in any way by this failure. This Court has previously held that in a situation of this kind the Miranda case is not applicable. Nathaniel Jones v. State of Indiana (1970), Ind., 20 Ind.Dec. 262, 255 N.E.2d 219.

Appellant also argues that his constitutional rights were violated in that he was required to appear in City Court for preliminary hearing without the aid of counsel, even though he had requested counsel.

Much has been said, both by the Supreme Court of the United States and by the Supreme Court of Indiana, concerning the right to counsel at all stages of the proceedings against a criminal defendant. Miranda v. Ariz., supra; Powell v. Ala. (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Thomas v. State (1969), Ind., 16 Ind.Dec. 358, 242 N.E.2d 919; Shack v. State (1967), 249 Ind. 67, 11 Ind.Dec. 713, 231 N.E.2d 36; State v. Minton (1955), 234 Ind. 578, 130 N.E.2d 226. There can be no question that the right to counsel is a sacred constitutional right which must be protected at all times. However, the argument of appellant requires us to examine the mechanics of how the state must go about affording this constitutional right. Certainly, police officers who have arrested an accused have no authority to appoint counsel. They are required by law to take an accused before a magistrate with reasonable dispatch. Burns' Ind.Stat., 1956 Repl., § 9--704a. Burns' Ind.Stat., 1956 Repl., § 9--706 requires that the judge before whom an accused is taken for preliminary hearing give the accused an opportunity and time to employ counsel, if he so desires. There is no evidence in this record that the court did not comply with this section of the statute.

An examination of this record discloses that when the appellant first appeared in the circuit court he informed the circuit judge that he was making arrangements for employment of counsel to defend him and requested a continuance in order that he might be able to complete his employment arrangements. This continuance was granted by the court. On June 5, 1968, Richard T. Heide, who is also one of the From this record we fail to see any violation of the safeguard of representation of the appellant by counsel in view of the fact that it is a judicial function to determine whether counsel shall be appointed at public expenses. It is most unrealistic to say that when an accused is first arrested and informs a police officer he would like to be represented by counsel that it would then be a denial of his constitutional rights to bring him before a magistrate for preliminary hearing or before a court having felony jurisdiction, unless he be accompanied by an attorney. If he is in fact indigent, he must enter the court room in order to obtain counsel. If, as in the appellant's case, he is able at that time to employ private counsel, he, of course, is free to do so prior to entering court. Certainly, the State cannot be required to furnish counsel before the appellant appears before the court having jurisdiction to provide the same. We hold the constitutional provision providing for counsel is full complied with, if the court having jurisdiction responds immediately upon application of an accused and the proof of his indigency.

counsel [255 Ind. 85] for appellant in this appeal, entered his appearance on behalf of the appellant. Intervening motions were filed. Eventually, September 27, 1968, was set as arraignment date for the appellant. At that time he appeared by counsel, Richard T. Heide, and Mr. Heide requested leave to withdraw his appearance as counsel for the appellant, and the appellant requested counsel be appointed to defend him at public expense, then alleging that he was without funds to continue private employment. It was at this time the court granted his petition for appointment of counsel at public expense, and the court appointed Richard T. Heide, who had previously been privately employed by the defendant, to continue as his defense counsel at public expense.

Appellant also claims that the preliminary hearing in the City Court was for all intents and purposes an unlawful lineup.

The United States Supreme Court has held in the cases of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that evidence of identification obtained at a pre-trial lineup is not admissible, if the accused is not represented by counsel or if the lineup is unfair in that it tends to call attention to the accused in an undue manner. However, the cases written by the Supreme Court of the United States on this subject do not require a reversal of the case, if it is clearly demonstrated that notwithstanding irregularities in pre-trial lineup there is positive in-court identification of the accused, which identification in no way depends upon observations made of the accused during the improper lineup.

The court in Gilbert, discussing Wade, stated:

'* * * a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical state of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.' 87 S.Ct. at 1956, 18 L.Ed.2d 1186.

In the Wade case the court stated:

'* * * We do not think this disposition can be justified without first In the case at bar a hearing was had out of the presence of the jury which clearly established that Kennon was the only one of the three identifying witnesses who was in attendance at the preliminary hearing. Kennon was not coached or prompted by anyone. Appellant entered the court room with several others and was immediately recognized by Kennon. Kennon immediately left the court. He could not have been influenced by the court proceedings because he left before they began.

giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. (Citing case.) Where, as here, the admissibility of...