Hurley v. State

• Decision Date: 13 April 1983
• Docket Number: No. 1081S303,1081S303
• Citation: 446 N.E.2d 1326
• Parties: Joseph W. HURLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1326

446 N.E.2d 1326

Joseph W. HURLEY, Appellant, v. STATE of Indiana, Appellee.

No. 1081S303.

Supreme Court of Indiana.

April 13, 1983.

Stuart W. Hyvonen, Rensselaer, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Joseph W. Hurley, was convicted of Possession of Marijuana, Ind.Code Sec. 35-48-4-11 (Burns Supp.1982), and Maintaining a Common Nuisance, Ind.Code Sec. 35-48-4-13 (Burns Repl.1979), at the conclusion of a jury trial in Jasper Circuit Court on March 5, 1981. The trial court subsequently sentenced him to two (2) years on the charge of maintaining a common nuisance and two (2) years on possession of marijuana, both terms to be served concurrently. For the finding of habitual offender, Hurley was sentenced to an additional thirty (30) years.

Defendant raises seven errors for our consideration, concerning: 1) whether the trial court erred in refusing the defendant a psychiatric evaluation; 2) whether the trial court erred in joining the offenses at trial; 3) whether certain of the State's exhibits were improperly admitted; 4) whether the trial court erred in denying the defendant's motion for continuance; 5) whether the transfer of the defendant to the Lake County Jail denied him effective assistance of counsel; 6) whether the trial court erred in overruling the defendant's Motion to Quash Search Warrant and Suppress Evidence; and, 7) whether the trial court erred in permitting the State to cross-examine the defendant's wife regarding her prior conviction.

On December 31, 1979, Todd Bilek, a fourteen-year-old, lived with his father, step-mother, grandmother and grandfather, in Remington, Indiana. The evidence showed that Todd had known the defendant for about a month and had previously purchased marijuana from him. On December 31, Todd's grandfather found some marijuana which Todd had unintentionally dropped in the bathroom. The Jasper County Police were called and after discussing the situation with Todd's father, Officer Schieler of the Jasper County Police asked Todd whether he would be willing to buy more marijuana from the defendant and turn it in to the police. Todd agreed to do so. At 7:30 that evening Todd went to the defendant's home and purchased slightly less than half an ounce of marijuana. Todd and his father delivered the marijuana to Officer Schieler. On January 2, 1980, a probable cause affidavit was executed in which Todd attested to the above facts. A search warrant for the defendant's home was issued and carried out and the defendant and his wife, Brenda Hurley, were arrested. Defendant was originally charged with dealing in marijuana but the jury found him not guilty on that charge. Paraphernalia and marijuana seeds were found in the house at the time of the search. Defendant's wife pleaded guilty to a charge, stemming from the incident, of visiting a common nuisance.

I

Defendant argues that the trial court erred in denying him a psychiatric evaluation to determine his competency to stand trial when his attorney suggested on the morning of trial that such a motion had been filed by a previous attorney. Defendant changed attorneys during the pleading stages of the trial and apparently some continuity was lost in so doing. The record contains a minute sheet which seems to indicate Defendant's first appointed counsel, Stuart Hyvonen, filed a request for psychiatric examination on January 8, 1980. Although this appeared in the minute sheet no one seemed to be aware of the situation and it is questionable that the judge ever signed the entry although the entry does purport to have been signed by Judge Philip McGraw, judge pro tempore. The only allegation in the entry is an assertion by Defendant's counsel that he suggested to the court that reasonable grounds existed for his belief that the defendant "lacks the ability to understand the proceedings and to assist in the preparation of his defense." This was not pursued any further by the defendant or his attorney. The defendant failed to appear at his June trial date and Hyvonen withdrew his appearance.

On November 10, 1980, Defendant was again placed in custody and Pat Riley was appointed as his counsel. Riley was unaware of the request for psychiatric evaluation. On December 8, 1980, Riley filed Defendant's Motion for an Early Trial, a hearing was had on the Motion and the cause was set for trial on March 5 and 6, 1981. On the morning of March 5, prior to trial, the trial court heard motions of counsel outside the jury's presence. At this time, defense counsel informed the court that the defendant's previous attorney had filed a Motion for Psychiatric Examination but no ruling had been made. Defense counsel admitted that the motion did not appear in the trial court's file. The trial judge indicated he had never seen the motion and upon questioning defense counsel the trial court discovered that although Riley had represented the defendant for at least four months, had pressed for an early trial, and had interviewed the defendant a week before trial, she had not suggested to the court that the defendant was unable to assist in the preparation of his defense nor had the question ever arisen. Riley conceded that she had discovered the motion only the day before trial. Finally, the trial judge asked counsel: "As this young man's attorney, and as an officer of this Court, do you think that he's unable to assist in his defense?" Attorney Riley did not express an opinion that she herself thought there was a question about Defendant's ability to assist in the preparation of his defense. Instead, she replied: "Your Honor, I can only act on what he's told me, and he feels that a psychiatric examination would be in his best interest. That he feels that because he's been placed in solitary so often that he has been--this is lingered so long that he does have serious mental problems."

The State's position is that Ind.Code Sec. 35-5-3.1-1 (Burns Repl.1979) (now repealed) provides that an evaluation should be undertaken when the court has reasonable grounds to question a defendant's competency but that the accused has the burden of establishing that reasonable grounds exist. Green v. State, (1981) Ind., 421 N.E.2d 635. We agree. The trial court has discretion to determine whether there are reasonable grounds to believe that the accused is incompetent to stand trial and that decision will be reviewed only for an abuse of that discretion. Dragon v. State, (1979) Ind., 383 N.E.2d 1046, 1047, cert. denied, (1979) 442 U.S. 912, 99 S.Ct. 2829, 61 L.Ed.2d 279; Harris v. State, (1974) 262 Ind. 208, 212, 314 N.E.2d 45, 48.

In Ray v. State, (1979) Ind., 396 N.E.2d 373, this Court held that competency requires a factual determination and our review encompasses the facts presented to the trial court and reasonable inferences to be drawn therefrom. There were no facts presented to the trial court here and trial counsel was not able to say that in her opinion there was a question concerning Defendant's competency. A prior attorney a year earlier had filed merely a bald assertion that there were reasonable grounds to suspect the competency of Defendant but did not follow up on the claim. In fact, there is a serious question whether the motion was properly filed with the trial court as it does not appear that either the trial court or the State was furnished a copy of the motion or a notice of its filing. The subject came up on the morning of trial only on discovery by attorney Riley that a suggestion of incompetency had been filed in January, 1980. Riley's activities with Defendant and his participation in the case indicated that there was no question regarding his cooperation and his competency to stand trial as many motions were pursued and a speedy trial motion was filed which resulted in a trial date of March 5. Thus, because no reasonable grounds were presented to indicate incompetency, the trial court was not required to grant the evaluation and there has been no abuse of discretion.

II

On the morning of trial the State moved to join the count of maintaining a common nuisance and possession of marijuana with the count of dealing in marijuana. Apparently these counts were filed under separate cause numbers. Defendant objected to such joinder. Defendant's counsel argued that she was prepared to try any of the charges separately but she was not prepared to try them together. Although it is not made clear by any of the briefs, apparently all of these charges were considered together during the pleading stages and were prepared for trial and set for trial on that date. We can only surmise it was an oversight in the record that they were not formally joined for trial prior to the morning of trial. This is evidenced by the fact that the parties were ready to try all of the charges and defense counsel herself stated she was able and prepared to try any of the charges. The issue arose when the court was hearing motions for both parties prior to commencing the trials. In view of these circumstances we find no error in the court's action. Ind.Code Sec. 35-3.1-1-10(b) (Burns Repl.1979) (now repealed) provides that joinder is permissible if the court finds that the offenses are part of a series of acts connected together or which constitute a single scheme or plan as contemplated by Ind.Code Sec. 35-3.1-1-9(a)(2) (Burns Repl.1979) (now repealed). We agree with the State that the charges of maintaining a common nuisance, possession of marijuana and dealing in marijuana were based on a connected series of acts in this case and could properly be joined before the trial commenced.

III

Defendant contends the trial court erred by admitting into evidence State's Exhibits 23, 24, and 25, which were certified records of his prior felony convictions. The State introduced these to establish that the defendant should be sentenced as a habitual offender. Defendant...