Haynes v. State, No. 3--872A46

Docket NºNo. 3--872A46
Citation155 Ind.App. 472, 293 N.E.2d 204
Case DateMarch 12, 1973
CourtCourt of Appeals of Indiana

Page 204

293 N.E.2d 204
155 Ind.App. 472
George Quine HAYNES, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 3--872A46.
Court of Appeals of Indiana, Third District.
March 12, 1973.

[155 Ind.App. 474]

Page 205

Edward V. Minczeski, South Bend, for appellant.

[155 Ind.App. 475] Theo. L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

SHARP, Judge.

The Appellant was charged by way of affidavit in three counts. In Count 1 he was charged with the placing of combustibles to destroy property under I.C.1971, 35--16--1--5, Ind.Ann.Stat. § 10-305 (Burns 1956). Count 2 of the affidavit charged the Appellant with the offense of conspiracy to commit a felony, to-wit; Second Degree Arson under I.C.1971, 35--1--111--1, Ind.Ann.Stat. § 10--1101 (Burns 1956). Under Count 3 Appellant was charged with the offense of entering to commit a felony, to-wit: Second Degree Arson. The crime of entering to commit a felony is defined in I.C.1971, 35--13--4--5, Ind.Ann.Stat. § 10--704 (Burns 1956). The offense of second degree arson is defined in I.C.1971, 35--16--1--2, Ind.Ann.Stat. § 10--302 (Burns 1956). (We have adopted the above designation of the three counts upon which Appellant went to trial. Other counts were filed and dismissed by the trial court.)

Trial was had to the jury which found the Appellant guilty on all three counts. Thereafter, the Appellant was sentenced on Count 1 to a term of one to three years, he was sentenced on Count 2 to a term of two to fourteen years, and was sentenced to a term of one to ten years on Count 3.

The four issues presented for review are:

(1) Whether the Appellant was denied a fair trial by not having counsel appointed to represent him.

(2) Whether the evidence was sufficient to sustain the verdict.

(3) Whether the trial court erred in giving certain instructions.

(4) Whether the trial court erred in denying Appellant's petition for a determination of sanity by the jury.

An examination of the record reveals that at approximately 1:00 A.M. on May 24, 1970, Robert Luchowski, Richard Feingold and Charles Lehman arrived by car at the Indiana [155 Ind.App. 476] University Auditorium at South Bend so that Luchowski could see a friend who worked there. As they drove into the parking lot, they noticed a figure in the doorway. Luchowski went into the building where he saw a man wearing a black mask, who, upon being noticed, turned and ran. Luchowski called to Feingold and Lehman for assistance and they entered the building and all proceeded to the auditorium stage. When they were at

Page 206

the stage, they encountered Appellant and his companion, Richard Johnson, both of whom were armed, one with a knife and the other with a bayonet, which they brandished in a threatening manner. Luchowski recognized one of the men as the Appellant, George Quine Haynes. Lehman and the others noticed several cans which indicated they contained combustible petroleum products. Lehman pointed to one such can and asked Appellant 'Is this yours?', to which Appellant remarked 'It could be.' Finally Appellant asked Lehman 'if we couldn't just forget it.' A check by a student security guard just minutes before this incident had disclosed no such cans containing combustibles. The guard also stated that at the completion of his rounds, just shortly before 1:00 A.M., all windows and doors were locked, and no other persons were in the building.

Further investigation by the police revealed a ladder leaning against the building for access to the roof, where there was a trap door leading to one of the classrooms. The police also found black shoe marks on the wall. Samples of the fluid taken from the containers proved to be gasoline. Both Appellant and his companion fled the scene before the police arrived. Appellant was subsequently arrested in Attica, New York.

I.

The Appellant first contends that he was denied a fair trial because the trial court permitted him to proceed with the trial without appointing counsel for him.

Appellant was represented by counsel through most of the [155 Ind.App. 477] preliminary proceedings. On September 10, 1971 Appellant's counsel asked leave to withdraw his appearance. There was no objection on the part of the Appellant. Thereafter the cause was set for trial on December 13, 1971, and that date Appellant appeared and informed the court that he wished to represent himself. The trial court conducted a specific in-court interrogation of the Appellant before the trial commenced. On three separate occasions during this interrogation the Appellant stated that he desired to represent himself and did not want or request an attorney. Appellant was also advised that an attorney would be appointed to represent him if he was without funds to employ such an attorney. At the end of this inquiry the following exchange occurred:

'The court: You're out on cash bail?

The Defendant: No and I don't want an attorney anyway. I rather defend myself.

The court: You want to defend yourself?

The Defendant: Yes.

The court: You don't want the court to appoint an attorney anyway?

The Defendant: No, I don't.'

Although a criminal defendant's constitutional right to be represented by counsel at trial has long been recognized and studiously preserved, it has been recognized that such a defendant may waive his constitutional right to counsel. Placencia v. State, Ind., 268 N.E.2d 613 (1971) and cases cited therein. The burden, however, is upon the state to affirmatively show that the criminal defendant knowingly, intelligently and understandingly waived his right to counsel. Fitzgerald v. State, 254 Ind. 39, 257 N.E.2d 305 (1970). If he is not financially able to employ counsel, it is the duty of the court to appoint a competent attorney at public expense. Fitzgerald v. State, supra; State v. Minton, 234 Ind. 578, 130 N.E.2d 226 (1955). But the defendant, even if indigent, cannot be compelled to accept the appointment[155 Ind.App. 478] of counsel against his will. Placencia v. State, supra; Gates v. State, 243 Ind. 325, 183 N.E.2d 601 (1962).

We believe that the colloquy between the Court and Appellant adequately demonstrates that the Appellant knowingly, intelligently and understandingly waived his constitutional right to counsel. Appellant

Page 207

now contends, however, that somehow the inquiry by the court as to whether the Appellant had sufficient funds to hire an attorney in light of the fact that Appellant was out on cash bond and had previously hired an attorney, confused Appellant to the extent that waiver was not clear and intelligent. The required interrogational format for a determination of the necessity to appoint counsel and the related standards for acceptance of a guilty plea were recently set forth in DeFrisco v. State, Ind.App., 288 N.E.2d 576 (1972). In DeFrisco the defendant was not advised by the trial court during arraignment proceedings that legal counsel would be appointed for him if he did not have the means to obtain private counsel. Here,...

To continue reading

Request your trial
10 practice notes
  • Russell v. State, No. 3-676A129
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1978
    ...so that his choice will be an informed one. Compare, e. g., Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138; Haynes v. State (1973), 155 Ind.App. 472, 293 N.E.2d 204 concerning an intelligent waiver of right to For an accused to make an informed election he must be aware of the nature o......
  • Arnold v. State, No. 2--873A181
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 1974
    ...'automobile' is of no significance. Two distinct and different crimes are created by these statutes, Haynes v. State (1973), Ind.App., 293 N.E.2d 204; Johnson v. State (1972), Ind., 284 N.E.2d 517, and 'automobiles' could reasonably be included in each of them. Arnold cites no authority to ......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...Ind. 97, 82 N.E.2d 623.' See also Finger v. State (1973), 260 Ind. 148, 293 N.E.2d 25; Walker v. State, supra; Haynes v. State (1973), 155 Ind.App. 472, 293 N.E.2d Therefore, the task before this Court is to determine whether the circumstantial evidence and reasonable inferences drawn there......
  • Wallace v. State, No. 2--775A169
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 1977
    ...Faretta v. California, supra, 422 U.S. at 834, 95 S.Ct. 2525. 4 We are aware that the court in Haynes v. State (1973), Ind.App., 293 N.E.2d 204, found an effective waiver from a very meager record. As that case was decided before Faretta, and transfer was never taken, we do not feel bound b......
  • Request a trial to view additional results
10 cases
  • Russell v. State, No. 3-676A129
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1978
    ...so that his choice will be an informed one. Compare, e. g., Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138; Haynes v. State (1973), 155 Ind.App. 472, 293 N.E.2d 204 concerning an intelligent waiver of right to For an accused to make an informed election he must be aware of the nature o......
  • Arnold v. State, No. 2--873A181
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 1974
    ...'automobile' is of no significance. Two distinct and different crimes are created by these statutes, Haynes v. State (1973), Ind.App., 293 N.E.2d 204; Johnson v. State (1972), Ind., 284 N.E.2d 517, and 'automobiles' could reasonably be included in each of them. Arnold cites no authority to ......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...Ind. 97, 82 N.E.2d 623.' See also Finger v. State (1973), 260 Ind. 148, 293 N.E.2d 25; Walker v. State, supra; Haynes v. State (1973), 155 Ind.App. 472, 293 N.E.2d Therefore, the task before this Court is to determine whether the circumstantial evidence and reasonable inferences drawn there......
  • Wallace v. State, No. 2--775A169
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 1977
    ...Faretta v. California, supra, 422 U.S. at 834, 95 S.Ct. 2525. 4 We are aware that the court in Haynes v. State (1973), Ind.App., 293 N.E.2d 204, found an effective waiver from a very meager record. As that case was decided before Faretta, and transfer was never taken, we do not feel bound b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT