Holt v. State

• Decision Date: 30 May 1984
• Docket Number: No. 283,283
• Citation: 463 N.E.2d 466
• Parties: Curtis Lee HOLT, Appellant, v. STATE of Indiana, Appellee. S 51.
• Court: Indiana Supreme Court

Page 466

463 N.E.2d 466

Curtis Lee HOLT, Appellant, v. STATE of Indiana, Appellee.

No. 283 S 51.

Supreme Court of Indiana.

May 30, 1984.

William L. Soards, Soards & Carroll, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Curtis Lee Holt was convicted by a jury in the Marion Superior Court of class A felony rape, class C felony battery and two counts of class A felony robbery. He subsequently was found by the same jury to be a habitual offender. The trial court accordingly sentenced Appellant to consecutive imprisonment terms totalling one hundred and twenty years. The specific sentences imposed were thirty years for rape, thirty years for robbery and thirty years for robbery which sentence was enhanced by thirty years for the habitual offender finding. The trial court vacated the verdict on Appellant's battery conviction since it was merged into the enhanced robbery conviction. Appellant now directly appeals and raises the following six issues:

1. Appellant's request for new trial counsel;

2. admission of certain photographs;

3. certain remarks by the prosecutor;

4. admission of certain medical testimony;

5. sufficiency of the evidence supporting the rape and robbery convictions; and

6. sufficiency of the evidence supporting the habitual offender finding.

The facts adduced at trial show that Appellant forced his way into the Indianapolis home of Hoy Campbell and Barbara Romine at approximately 8:30 a.m. on May 10, 1981. During his six hour stay, Appellant beat Campbell, bound him with wire and shot him with a B-B gun in his eye. Campbell lost his sight in that eye. Appellant also beat, bound and twice raped Romine. Appellant took $40 belonging to Romine and $3 and a watch belonging to Campbell. Both Campbell and Romine were familiar with Appellant and unequivocally identified him as their attacker. A neighbor also identified Appellant as the man he saw chasing Campbell on May 10 after Campbell had been shot in his eye. The police were called and both victims were medically examined promptly after the attacker finally left.

I

Appellant first contends that the trial court erred by not appointing a new public defender to represent him after he stated that he did not consider himself adequately represented by his appointed counsel and wanted a new public defender. The record shows that the trial court appointed a public defender to represent Appellant on August 19, 1981. On December 16, 1981, Appellant filed a Motion to Proceed Pro Se claiming that he was "competent" and "more than adequately capable" of presenting his own case. On April 6, 1982, Appellant filed various motions including a motion for continuance asking that he not represent himself pro se but have a new attorney appointed for him. The record further shows that at the start of Appellant's trial on June 28, 1982, the following testimony was made:

"Mr. Sexson [Appellant's public defender]: Before you bring the Jury back, Mr. Holt wanted to go on record as stating the reason he didn't want me to represent him in this case.

Court: He's free to make a record, if he wishes. If you want to state whatever you wish for the record, you may proceed.

Defendant Holt: The number one reason, I have requested that Mr. Sexson have (sic) filed Motions in my behalf since my arrest which he has (unintelligible) yet. Motions such as Motion to Suppress Evidence, documents and Police records, dating back from September of '79 to November of '80. He has not did (sic) these things for me as yet, which is relevant to this case. I have asked him to file a Motion to subpoena my blood type, or get a blood test ran (sic) on me. It is said that this is irrelevant to the case, which I feel is very relevant to the case. I have asked him to file Motion for change of Courts. He said this would be denied by the Judge, and no other reasons. I have asked him to file Motions to dismiss the charges which are against me here, not filed yet. I have asked him to file Motions for Deposition, he has not filed yet. I have requested Mr. Sexson to remove hisself (sic) from this case because he has shown me lack of interest in defending my innocent (sic) by trial. Also he has shown me that he feels that I am guilty of the crime, of a crime I did not commit, nor entertain the thought of committing. Mr. Sexson has not contacted witnesses for my--in my behalf, by phone or in person. For what reason unknown to me at this present moment. Witnesses that I wanted to call, one witness' job is in jeopardy if he comes to Court today, because of close relationships with the job, his job, and Defendant's--used to be, I mean working place. Another witness is afraid that charges would be filed if she came, I mean if he came up here and testified in my behalf. I'm asking for justice I'm not asking for no more. Again, I say that I would like Mr. Sexson be removed from being my Defense Counselor, because I do not fee (sic) conficent in his profession, and I would like this to be on record."

The trial court possessed the discretion to deny Appellant's request for a new public defender. Accordingly, we will review the trial court's ruling only for an abuse of that discretion. Houze v. State, (1982) Ind., 441 N.E.2d 1369. Appellant fails to show how he was incompetently represented by his appointed counsel. Specifically, he neither shows how the motions he desired would have advanced his cause nor explains what testimony any additional witnesses would have provided. The record only suggests that Appellant, untrained in the law, became dissatisfied with his efforts to dictate the outcome of these proceedings. During his sentencing hearing, Appellant was asked by the trial court whether he had any specific allegations or complaints about the performance of his appointed trial counsel. Appellant replied:

"Well one, I never should have been found guilty. I will just put it that way. I just shouldn't never have been found guilty."

This Court has held that "an acquittal is not the yardstick by which the adequacy or effectiveness of representation is measured." Dean v. State, (1982) Ind., 433 N.E.2d 1172, 1187, supplemented Ind., 441 N.E.2d 457. Moreover, we have held that counsel is presumed to have provided competent representation absent clear and convincing evidence to the contrary. Baker v. State, (1980) 273 Ind. 304, 403 N.E.2d 1069, cert. denied 449 U.S. 882, 101 S.Ct. 232, 66 L.Ed.2d 106. We now hold that Appellant was competently represented at trial and that the trial court did not abuse its discretion by denying Appellant's request for a new public defender.

II

Appellant also contends that the trial court erred by admitting into evidence certain photographs of the victims which allegedly were inadmissible and prejudicial. It is well-established that the admission of photographs into evidence is within the sound discretion of the trial court and reversal will be granted only upon a showing of abuse of that discretion. To be admissible, a photograph must be relevant. Relevancy of a photograph depends upon whether a witness would be permitted to describe the objects or scenes depicted by the photograph. Finch v. State, (1984) Ind., 459 N.E.2d 1184; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228.

Appellant now objects to six photographs identified as State's Exhibits 1, 2, 3, 4, 11 and 12. During trial, however, Appellant objected only to Exhibits 1, 2, and 12. In fact, Appellant's trial counsel specifically stated that he had no objection to Exhibits 3, 4, and 11. Appellant therefore waived his chance to contest Exhibits 3, 4, and 11. Dean, supra.

State's Exhibit 1 and 2 were introduced through the testimony of Patricia Pettiford, the emergency room nurse who attended to Hoy Campbell shortly after he was beaten and shot in the eye. Pettiford testified that Exhibits 1 and 2 were "fair and accurate representations" of what Campbell looked like when she examined him in the hospital after his attack. At trial, Appellant did not object that these photographs were gruesome or prejudicial. Instead, he objected that these photographs were inadmissible because they were not taken at the hospital and therefore could not depict Campbell as he looked when Pettiford examined him. Although the photographs show a background which indicates a place other than inside the hospital, Pettiford nonetheless testified that they were true and accurate representations of Campbell as she saw him. This is sufficient to justify the admission of Exhibits 1 and 2. Finch, supra. The photographs were admissible.

State's Exhibits 3, 4, 11 and 12 depict Barbara Romine as she looked after being attacked. Hoy Campbell authenticated these photographs by testifying that they showed how Romine looked to him on May 10th after her attack. Appellant now argues that these photographs should not have been admitted since they apparently were taken several days after May 10th and Campbell did not know who took them. Once again we find that these photographs were properly authenticated as true and accurate representations of what the witness was testifying about and therefore were properly admitted. There is no error on this issue.

III

Appellant next alleges that the trial court erred by allowing the prosecutor to comment during trial that Barbara Romine was, as Appellant states it, a "border- line retarded person." According to Appellant's brief, however, the record indicates that the prosecutor never stated that Romine was "retarded." Instead, the record shows that that the prosecutor twice commented during voir dire...