Kindred v. State

Decision Date08 June 1988
Docket NumberNo. 285S67,285S67
Citation524 N.E.2d 279
CourtIndiana Supreme Court
PartiesJames H. KINDRED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Michael E. Hunt, Monroe County Public Defender, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant-appellant James H. Kindred appeals his conviction following a jury trial for one count of perjury, a class D felony, (Ind.Code Sec. 35-44-2-1) and two counts of forgery (uttering), a class C felony, (Ind.Code Sec. 35-43-5-2). The jury acquitted the defendant of the charge of habitual offender. Finding aggravating circumstances, the trial court enhanced each sentence and ordered them to be served consecutively for a total of twenty years imprisonment. Defendant presents forty-nine (49) allegations of error in his appellate brief. We have regrouped these issues into the following eleven categories:

1. waiver of right to counsel;

2. alleged defects in the information;

3. joinder of offenses;

4. discovery procedure;

5. jury selection;

6. State's Motion for Continuance;

7. prosecutor's comments during opening statements;

8. admissibility of evidence;

9. prosecutor's comments during closing arguments;

10. sufficiency of evidence; and,

11. reasonableness of sentence.

The evidence most favorable to the judgment reveals that defendant was employed as a paralegal by an attorney in Martinsville, Indiana. In January, 1984, the defendant, using false identification, procured a duplicate driver's license under the name "Gary Hooser." Using the license, defendant set up multiple bank accounts in Hooser's name in Bloomington, Indiana. In February, 1984, defendant took blank checks from his employer, made them out to the order of "Hooser Para Legal Firm/Gary D. Hooser," filled in the amounts, signed his employer's name, and then cashed them at various bank branches in Bloomington.

1. Waiver of Right to Counsel

The defendant conducted his own defense in the instant case with the assistance of appointed counsel acting in an advisory capacity. Defendant now contends the trial court erred in failing to advise him of the dangers and disadvantages of proceeding pro se and asserts the record is silent as to an affirmative waiver of his Sixth Amendment right to counsel.

We have previously recognized that a defendant requesting to proceed pro se should be fully advised and forewarned of the hazardous adventure that awaits him. Nation v. State (1983), Ind., 445 N.E.2d 565. In Faretta v. California (1975), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581, Justice Stewart noted:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. [citations omitted]. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and choice is made with eyes open." Adams v. United States ex rel. McCann, 317 US, at 279, 87 L Ed 268, 63 S Ct 236, 143 ALR 435.

Viewing defendant's argument in the context of the totality of the circumstances in this case, we find it to be without merit. First, we note defendant is no stranger to the criminal justice system. He claims to have over ten years experience as a paralegal and claims to have been involved as a lay advocate in over three hundred adversary proceedings. Moreover, we note he has been involved both as a defendant and an appellant in numerous judicial proceedings. See, e.g., Kindred v. State (1988), Ind., 521 N.E.2d 320; State ex rel. Kindred v. Morgan Circuit Court (1983), Ind., 455 N.E.2d 328; Kindred v. State (1977), 173 Ind.App. 624, 365 N.E.2d 776; Kindred v. State (1974), 160 Ind.App. 418, 312 N.E.2d 100; Kindred v. State (1970), 254 Ind. 127, 258 N.E.2d 411; Kindred v. State (1970), 254 Ind. 105, 258 N.E.2d 53; Kindred v. State (1970), 254 Ind. 73, 257 N.E.2d 667.

The record shows defendant to be literate, competent and fully aware of his right to counsel. Prior to the appointment of pauper counsel, defendant articulated a preference for proceeding pro se, despite the trial court's warning of the perils inherent in self-representation. Defendant subsequently accepted appointed counsel on April 24, 1984. The following month, defendant moved to be designated co-counsel in the case. In support of his motion, defendant cited his alleged expertise in the field of constitutional law and his experience as a paralegal. The trial court granted the motion, and defendant proceeded to file dozens of pro se motions and became directly involved in the course of numerous pre-trial proceedings. In August, 1984, defendant asserted his right to proceed pro se, pursuant to the United States Supreme Court's ruling in Faretta, supra. The trial court granted this motion but instructed the public defender to continue to assist defendant in an advisory capacity throughout all stages of the proceedings. The record demonstrates defendant was not only aware of the dangers and disadvantages of self-representation, but that he availed himself of the opportunity to avoid those perils by engaging in effective consultation with the public defender on numerous occasions during the course of pre-trial proceedings and the trial itself. In fact, the public defender occasionally became directly involved in the proceedings themselves upon the request of both defendant and the trial court.

We find no error on this issue.

2. Alleged Defects in the Information

Defendant predicates error on the trial court's refusal to dismiss the charges due to an alleged defect in the original charging information and upon alleged improprieties involving the State's subsequently amended information.

In addition to the perjury count, the original information charged two counts of making a forged instrument and two counts of uttering a forged instrument. Attached to the information were photostatic copies of the two checks involved: check # 125 drawn on the First National Bank of Martinsville, and check # 173 drawn on the Bank One of Columbus. Defendant moved to dismiss the charges pursuant to Ind.Code Sec. 35-34-1-4(a)(11) because the information 1) failed to allege a defrauded party, and 2) did not specifically designate which counts were based on the making and uttering of which instrument. At a hearing on defendant's motion, the State dismissed the two counts of making a forged instrument and moved to amend the information with respect to the remaining counts. Without ruling on defendant's motion to dismiss, the court granted the State's motion over the defendant's objection.

It is well settled that a charging instrument must sufficiently apprise the defendant of the nature of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial. Smith v. State (1984), Ind., 465 N.E.2d 702; Griffin v. State (1982), Ind., 439 N.E.2d 160, ovr'ld in part on other grounds, Bailey v. State (1985), Ind., 472 N.E.2d 1260. We find the original information in this case adequately complied with this requirement and sufficiently complied with Ind.Code Sec. 35-34-1-2. The failure of the State in this case to specifically name the defrauded parties was not a defect because the identity of the parties is clearly ascertainable in the attached instruments. It is the allegation and proof that the defendant had the intent to defraud which is crucial to the conviction. Darnell v. State (1972), 257 Ind. 613, 277 N.E.2d 366; Ralston v. State (1980), Ind.App., 412 N.E.2d 239. Moreover, the failure of the State to specifically designate which counts were predicated on which instrument was an immaterial defect properly corrected by way of an amended information filed pursuant to Ind.Code Sec. 35-34-1-5, which permits the State to correct any "defect, imperfection or omission in form which does not prejudice the substantial rights of the defendant." 1 The amended information was filed on July 19, 1984, approximately one month before trial. Defendant neither sought a continuance to accord himself more time to prepare his defense, nor has he shown undue prejudice as a result of the trial court's ruling.

We turn next to the defects allegedly contained in the amended information. In addition to the perjury charge, the amended information charged the defendant with two counts of uttering a forged instrument: Count I referred to "Attached check # 125" and Count II referred to "Attached check # 173." However, copies of the checks were not attached to the amended information. Defendant filed another motion to dismiss alleging the amended information failed to comport with due process requirements. The motion was overruled.

Defendant now asserts he was not sufficiently advised of the nature of the charges because he was unable to discern from the charging instrument what "check # 125" and "check # 173" referred to. In support of his argument, he cites Griffin, supra. Griffin involved a prosecution for receiving stolen property. The original information contained a description of the stolen property and names of the owners of the stolen goods. The amended information, however, alleged only that defendant knowingly received stolen property, and there was no description of the property at all or any indication as to the identities of the rightful owners. This Court viewed the inadequacy of the amended information as fundamental error requiring reversal.

We find the amended information in the instant case to be distinguishable. Indiana Code Sec. 35-34-1-14 provides:

In any indictment or...

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