Gregory v. State
| Decision Date | 14 August 1980 |
| Docket Number | No. 3-480A99,3-480A99 |
| Citation | 408 N.E.2d 594 |
| Parties | Jarvis GREGORY, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
F. Joseph Jaskowiak, Hoeppner, Wagner & Evans, Valparaiso, for appellant.
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.
Jarvis Gregory, Jr. was charged and convicted by jury of two counts of the crime of Child Molesting, a class C felony. 1 He was sentenced to the Indiana Department of Correction for two concurrent sentences of four years on each count.
On appeal, Gregory raises three issues for our consideration:
(1) Were his Fourteenth Amendment rights to due process and equal protection violated when he appeared at voir dire in prison clothing?
(2) Was his Sixth Amendment right to effective assistance of counsel violated by his wearing of prison clothing at voir dire?
(3) Was the judgment of the trial court supported by sufficient evidence?
We affirm.
In his brief on appeal, Gregory admits that the alleged errors # 1 and # 2 were not included in his motion to correct errors. He urges us, however, to ignore this usually fatal procedural defect and consider his claims by virtue of the "fundamental error doctrine."
Citing Grier v. State (1968), 251 Ind. 214, 240 N.E.2d 494, he explains that this doctrine may be used by an appellate court to enable it to consider an error which has not been properly raised. This may be done, he states, if "the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial." Grier, supra, 240 N.E.2d at 496.
Gregory charges that his Sixth Amendment and Fourteenth Amendment rights were violated when he appeared in jail clothing at the voir dire. 2 Urging that this alleged error was of such magnitude as to have denied him fundamental due process, he asks this Court to circumvent the established rules of appellate procedure. In order for us to do so, we must be convinced that an error so pervaded the climate of the proceedings below that when viewed as a whole, the defendant was deprived of any realistic opportunity for a fair hearing. Winston v. State (1975), 165 Ind.App. 369, 332 N.E.2d 229.
Such is not the case here. A thorough review of the record persuades us that while Gregory wore jail clothing at his voir dire, he was not compelled to do so. With legal counsel, he had chosen to appear 3 in his coveralls, rather than to wear the dirty civilian clothing in which he had been arrested. 4 The following discussion, held in chambers between Gregory, his counsel and the judge, is particularly pertinent:
Yeah, okay. It is between what is available in private clothing and what he has got on. Better off in what he has got on now.
"BY MR. SCHNEIDER:
I would think so.
"BY THE COURT:
Is there any way to get him clothing for tomorrow? I will give the jury the admonishment. Have your staff work on that.
"BY MR. SCHNEIDER:
All right.
"BY THE COURT:
Now, the question is do you want him present with you while you are picking a jury?
"BY MR. SCHNEIDER:
We have done it before. I have had situations like this.
Before voir dire, the judge admonished the prospective jurors:
Gregory relies upon Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 and Smith v. State (1979), Ind., 396 N.E.2d 898 in his attempt to demonstrate fundamental error. In each case, the defendant was compelled to wear jail garb at his trial. Both cases, however, are inapplicable here as it appears that Gregory, with the affirmative acquiescence of counsel, not only exercised the option of wearing jail garb, 5 but chose to be present at voir dire as well.
We conclude that the record does not reveal a denial of fundamental due process. As such, we will not disregard the long-standing rule of appellate procedure that a matter cannot be raised for the first time on appeal. Webb v. State (1972), 259 Ind. 101, 284 N.E.2d 812.
Gregory next claims that there was insufficient evidence to prove beyond a reasonable doubt that he "performed or submitted to any fondling or touching" of the 6-year-old victim "with the intent to rouse his sexual desires." We disagree.
When considering questions concerning the sufficiency of evidence on appeal, this Court will only consider that evidence which is most favorable to the State, together with all the logical and reasonable inferences to be drawn therefrom. Inman v. State (1979), Ind., 393 N.E.2d 767. We will neither weigh the evidence nor judge the credibility of the witnesses. Walters v. State (1979), Ind., 394 N.E.2d 154. The verdict will not be disturbed if there is sufficient evidence of probative value to support the determination of guilt beyond a reasonable doubt. Walters, supra.
The evidence indicates that on July 20, 1979, Gregory, known as the "Candyman" to the neighborhood children, had taken two girls, a 6-year-old and her 8-year-old friend, into the bedroom of his trailer. He was found fondling the oldest child between her legs with his face and hands according to the testimony of the mother of the 6-year-old. She testified that:
To continue reading
Request your trial
-
Jones v. State
...minor. Smith v. State, (1982) Ind., 432 N.E.2d 1363, 1372; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189, 1190; Gregory v. State, (1980) Ind.App., 408 N.E.2d 594, 596. It is also well settled that we do not judge the credibility of witnesses as a court of review, nor do we reweigh the ......
-
Bennett v. State
...The uncorroborated testimony of the prosecuting witness is sufficient to sustain a conviction for child molesting. Gregory v. State (1980), Ind.App., 408 N.E.2d 594, (1980); Smith v. State (1978), Ind.App., 372 N.E.2d 511, 516. In the present case, the prosecuting witness identified Bennett......