Jackson v. State
| Decision Date | 24 October 1985 |
| Docket Number | No. 1084S406,1084S406 |
| Citation | 483 N.E.2d 1374 |
| Parties | Louis E. JACKSON a/k/a Babo Jackson, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Ind., David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Louis Jackson was found guilty by a jury in the Jackson Circuit Court of rape, a class A felony, criminal deviate conduct, a class A felony, criminal deviate conduct, a class B felony, and was also found to be an habitual offender. The trial court sentenced him to a term of fifty (50) years on the two class A felonies to be served concurrently, twenty (20) years for the class B felony to be served consecutively to the other sentences, and enhanced the sentence by thirty (30) years for the habitual offender finding, for a total sentence of one-hundred (100) years.
Appellant's arguments present two issues for consideration:
1. whether the trial judge forced ineffective counsel upon Appellant; and
2. whether the sentences are manifestly unreasonable.
The evidence showed the acts of which Appellant was charged were perpetrated upon his fifteen year old daughter. She testified that on November 23, 1982 Appellant awakened her, became belligerent with her, and assaulted her with a belt. He then threatened her with a gun, forced her to disrobe, and ordered her into the bedroom of their mobile home. He forced his daughter to commit oral sex on him and then performed oral sex upon her. He also forced her to have sexual intercourse with him. The following day he again forced her to have oral sex with him. After these incidents Appellant's daughter became frightened and called a girlfriend of her father, who contacted the police. A subsequent rape examination proved positive for the presence of semen in her vagina and cervix. Blood tests conducted on both Appellant and his daughter indicated that both were type ABO type A secretors, and that since no type B antigen was present in the stains taken from his daughter, Appellant could not be ruled out as the source of the semen.
Appellant moved for a change of counsel on the day of trial. The trial court refused the motion and Appellant now claims the trial court abused its discretion in doing so, and that it further resulted in his being tried with ineffective counsel.
On or about January 1, 1983, the trial court appointed a public defender to represent Appellant based on his affidavit that he was a pauper. The record also shows that on May 10, 1983 a pre-trial order was filed which provided in part that the parties had agreed to a trial date of July 11, 1983. It had never been brought to the attention of the trial court that there was any conflict between him and counsel until the morning of July 11, 1983, when Appellant was produced in open court for trial, although counsel had informed the trial court the previous Friday that the two were having difficulty. At the start of trial Appellant immediately objected to being represented by counsel, claiming he had a conflict with him because counsel had been arrested twice for D.U.I., had not prepared a defense or plan for trial, and had not carried out any of the instructions Appellant had given him to obtain witnesses, depose the victim, and other requests. The court informed Appellant the case was set for trial that day and that he previously had never mentioned any dissatisfaction with counsel. Appellant claimed he had learned of the trial date only on the previous Thursday, but the court found Appellant had been in open court and had been informed of the trial date when the setting was made. The court then advised Appellant that the cause already had been continued on several occasions, and that he would not grant an additional continuance which would be necessary to appoint new counsel. The trial judge indicated he had past experience with this lawyer, and knew him to be competent and able to adequately serve Appellant. He advised Appellant to cooperate with counsel, and further advised him of the difficulties he would find in attempting to represent himself without a lawyer. Appellant stated he would rather go to trial with a lawyer than try the cause himself, but he did not want this particular lawyer. The trial court then advised him he did not have a right to select a lawyer, and he would have to proceed with this lawyer. The court again encouraged Appellant to cooperate with his appointed public defender but Appellant still refused. The court then ordered that the public defender would still stay on with Appellant and that Appellant would be free to examine witnesses and conduct any part of the trial he wished, but that counsel would be available to help him and do anything in the trial that Appellant wished him to do. The trial court then stated:
The record shows that Appellant did very little to represent himself or conduct the trial. He made a short opening and closing statement in which he complained to the jury about the incompetence of his lawyer, but did not speak to the facts of the case. His counsel did make opening and closing statements, cross-examine the victim and other State witnesses presented, and object to evidence offered by the State. Counsel did all of this even though Appellant insisted he do nothing in the trial.
The trial court properly advised Appellant that he had a right to be represented by counsel, but had no right to counsel of his choosing. If a defendant refuses court-appointed counsel his recourse is to secure his own counsel or to proceed in propria persona. Luck v. State (1984), Ind., 466 N.E.2d 450, 451. The defendant may not compel dismissal of court-appointed counsel merely by requesting it. Fink v. State (1984), Ind.App., 469 N.E.2d 466, 470. A motion for change of counsel made close to trial which would cause the court to grant a continuance justifies the court in denying the motion as being untimely made. A motion on the day of trial has been held to be per se untimely. Averhart v. State (1984), Ind., 470 N.E.2d 666, 689, reh. denied (1984), cert. denied (1985), --- U.S. ----, 105 S.Ct. 2051, 85 L.Ed.2d 323; Fink, Ind.App., 469 N.E.2d at 470; Equia v. State (1984), Ind.App., 468 N.E.2d 559, 565.
Appellant's request here was made on the first day of trial without any previous notice to the court by him that there was a problem. A continuance would have delayed a trial which had already suffered several continuances and extensions from December 1, 1982. Appellant's claims against his lawyer were all uncorroborated allegations and all referred to his personal relationship with counsel and his appraisal of what counsel was or was not doing to conduct a proper defense.
Appellant claims he gave counsel instructions to examine certain witnesses and call them for trial, have saliva tests taken of his daughter's boyfriend, and depose his daughter. These are all matters of strategy, the conduct of which counsel and Appellant apparently differed. There is no showing as to what evidence or defense might have been produced by following Appellant's advice, in what way Appellant's chances for acquittal might have been advanced or improved, or to put it another way, in what way Appellant was prejudiced by the course of action his lawyer was taking.
Appellant claims counsel advised him the prosecuting attorney had offered a plea bargain of thirty-five (35) years. Appellant told counsel he did not want to plea bargain but wanted to go to trial on the cause. Immediately prior to trial Appellant was advised that the prosecuting attorney would agree to a plea bargain of twenty-four (24) years, and counsel advised Appellant to accept the offer. There were heated arguments in which Appellant insisted no plea bargain would be accepted, and that he wanted to go to trial on the issues. He now argues that one of counsel's failings was that he spent all of his time on plea bargains which Appellant did not want, and no time on planning a defense. We see little merit to Appellant's arguments here. Appellant faced very serious charges, supported by testimony from the victim and medical evidence that she had been sexually molested. He admits his lawyer advised him that he faced a potential 160 year sentence and that twenty-four years would be a good compromise.
The trial court tried in vain to convince Appellant he would be wise to cooperate with counsel and let him conduct the case rather than resist him as Appellant was...
To continue reading
Request your trial
-
Bellmore v. State
...the outcome of the case. Id.; Chupp v. State (1987), Ind., 509 N.E.2d 835; Burr v. State (1986), Ind., 492 N.E.2d 306; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Price v. State (1985), Ind., 482 N.E.2d 719; Seaton v. State (1985), Ind., 478 N.E.2d The defendant argues that his right to......
-
Davis v. State
...or bad tactics do not necessarily amount to ineffectiveness of counsel. Id.; Burr v. State (1986), Ind., 492 N.E.2d 306; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Price v. State (1985), Ind., 482 N.E.2d 719; Seaton v. State (1985), Ind., 478 N.E.2d As discussed above, we find no merit......
-
Slaton v. State
...of counsel. Strickland, supra; Burr v. State (1986), Ind., 492 N.E.2d 306; Price v. State (1985), Ind., 482 N.E.2d 719; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Seaton v. State (1985), Ind., 478 N.E.2d At a post-trial hearing on defendant's motion to correct errors, Laquittia Dillard......
-
Dobbins v. State
...counsel (Mr. Koselke) and so one of his options was to retain his own counsel. Another was to proceed pro se. Jackson v. State, 483 N.E.2d 1374, 1377 (Ind. 1985). We find that the Defendant intended neither. Defendant stated that he could not afford to hire his own attorney; Defendant did n......