Kroegher v. State
| Citation | 774 N.E.2d 1029 |
| Decision Date | 17 September 2002 |
| Docket Number | No. 79A02-0112-CR-839.,79A02-0112-CR-839. |
| Parties | William Scott KROEGHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
William Scott Kroegher ("Kroegher") was convicted of sexual battery,1 as a Class D felony, and Battery,2 as a Class A misdemeanor, in Tippecanoe Superior Court. Kroegher was sentenced to three years for the sexual battery conviction and one year for the battery conviction to be served consecutively. The trial court then suspended one year and ordered Kroegher to serve one year on supervised probation. Kroegher appeals raising the following issues, which we restate as:
I. Whether the trial court abused it discretion when it excluded testimony of Kroegher's alibi witness; and,
II. Whether Kroegher's waiver of right to counsel was voluntary.
We affirm.
Lisa Miley ("Miley") and Kroegher lived together from October 1997, to April 2000. On April 28, 2000, Miley and Darren Mickler ("Mickler") were in Miley's ex-husband's apartment, drinking beer, when Mickler saw Kroegher in the hallway of the apartment. Kroegher accused Miley and Mickler of sleeping together, and hit Miley in the neck with a stun gun. Kroegher then left the apartment and Mickler called the police. Officer Chris McCain of the Lafayette Police Department responded to the call. During his conversation with Miley, McCain observed a red mark on her neck. After Officer McCain left, Miley locked the doors to the apartment and went to bed.
Near dawn, Miley woke up to find Kroegher sitting on top of her, hitting her in the face. Kroegher demanded that Miley perform oral sex on him, but she refused to do so. Kroegher then ripped Miley's clothes off, pinned her arms down and had intercourse with her. Tr. pp. 56-57. After Kroegher left, Miley drove to the hospital. Police officers and a hospital nurse observed abrasions and swelling on Miley's face, abrasions on her arms and legs, a bruised and swollen right wrist, and redness on the side of Miley's neck.
The State charged Kroegher with rape, burglary, confinement,3 sexual battery, and two counts of battery. Kroegher hired an attorney to represent him, but the attorney withdrew citing a breakdown in communication with Kroegher. Appellant's App. p. 18. Kroegher then hired a second attorney who entered his appearance on July 26, 2000. On November 1, 2000, Kroegher's second attorney filed a notice of alibi defense; however, he later filed a motion to withdraw the notice on November 20, 2000, which was granted. On June 15, 2001, Kroegher's attorney filed a motion to withdraw his representation of Kroegher, which was granted. Kroegher then indicated to the trial court that he would be hiring a third attorney; however, the attorney never entered an appearance because Kroegher failed to pay his retainer fee or remain in communication with him. Appellant's App. p. 35. On July 16, 2001, a hearing was held, and after the trial court advised him of the dangers of representing himself, Kroegher informed the trial court that he wanted to proceed pro se. Kroegher also asked if he would be permitted to file a motion to re-file his alibi defense and the trial court indicated that Kroegher could file any motion that he felt was in his best interests. Tr. pp. 29-30.
A three-day jury trial began on October 24, 2001. Kroegher proceeded pro se, but after he unsuccessfully attempted to cross-examine the State's first witness, the trial court arranged for a standby attorney to be present to advise Kroegher. During trial, despite the fact that his notice of alibi had been withdrawn and he had not re-filed it, Kroegher attempted to introduce the testimony of an alibi witness. The trial court ruled that the testimony was inadmissible; therefore, Kroegher made an offer of proof. The witness testified that on April 29, 2000, Kroegher arrived at his home before 5:00 a.m. and they went mushroom hunting.
Kroegher was found not guilty of rape and burglary, but guilty of sexual battery and the two battery counts. At the sentencing hearing, the trial court entered a judgment of conviction on the sexual battery count and one battery count, but declined to enter judgment on the remaining battery count. Kroegher was sentenced to three years for the sexual battery conviction and one year for the battery conviction, to be served consecutively. The trial court then suspended one year of the sentence and ordered Kroegher to serve one year of supervised probation. Kroegher appeals. Additional facts will be provided as necessary.
Kroegher argues that the trial court abused it discretion when it excluded the testimony of his alibi witness. Indiana Code section 35-36-4-1 provides that when a defendant intends to offer evidence of an alibi at trial, within certain time limits, the defendant shall "file with the court and serve upon the prosecuting attorney a written statement of his intention to offer such a defense." Ind.Code § 35-36-4-1 (1998). If the defendant fails to file notice of an alibi defense, the trial court "shall exclude evidence offered by the defendant to establish an alibi," unless the defendant can show good cause for his failure to file. Ind.Code § 35-36-4-3(b) (1998); see also Manning v. State, 557 N.E.2d 1335, 1337 (Ind.Ct.App.1990),
trans. denied. "Where there is a showing of good cause for the defendant's failure to [meet] the statute's requirements, however, the trial court may admit alibi evidence as a matter of discretion." Manning, 557 N.E.2d at 1337 (citations omitted).
The General Assembly enacted the alibi statute to serve two main purposes. First, the statute protects "the defendant's ability to establish the defense by requiring the State to commit to a particular place and time that it intends to prove at trial as being the particulars of the crime." Griffin v. State, 664 N.E.2d 373, 375 (Ind.Ct.App.1996) (citing Brown v. State, 436 N.E.2d 285, 287 (Ind.1982)). Recognizing that some defendants will fabricate an alibi, the second purpose of the statute is to allow the State to receive notice before trial regarding the place the defendant claims to have been when the crime was committed. Id. (citing Brown, 436 N.E.2d at 287). "The alibi statute `is not intended `to compel the exclusion of evidence or mandate retrials for purely technical errors.''" Id. ().
We also note that the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to present witnesses on his behalf. Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct.App.1995) (citing Borst v. State, 459 N.E.2d 751, 753 (Ind.Ct.App.1984)).
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Id. (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). While the right to present witnesses is of critical importance, the right is not absolute and must sometimes yield to other legitimate interests in the criminal trial process. Id.
In this case, Kroegher filed a notice of alibi defense on November 1, 2000. However, twenty days later, Kroegher's attorney filed a motion to withdraw the notice of alibi defense, which was granted on November 27, 2000.4 The motion stated that "based upon a conference with [Kroegher] on Sunday, November 19, 2000, counsel herein has been authorized to withdraw the Notice of Alibi Defense." Appellant's App. p. 27. Thereafter, said counsel withdrew.
Prior to trial, at a hearing on July 16, 2001, Kroegher, who was proceeding pro se, asked the trial court if he would be permitted to file a motion to re-file his alibi defense. Tr. p. 29. The State responded:
The problem Mr. Kroegher is that the Court's really not in a position to give you legal advice. That's going to have to come from a lawyer or you're going to have to do the research and figure it out on your own.
Tr. pp. 29-30. The trial court then stated, "[y]ou can file what you feel is in your best interests, . . . and I'll consider it and we'll go from there." Tr. p. 30. Kroegher did not re-file the notice of alibi defense prior to trial.5
In Harrison v. State, 644 N.E.2d 1243 (Ind.1995),6 the defendant filed a notice of alibi defense two days prior to trial and the State filed a motion in limine seeking to exclude the alibi evidence, which the trial court granted. Id. at 1245-55. While our supreme court noted, "deadlines imposed in the alibi notice statute cannot be enforced so as to deny a defendant due process of law and a fair trial," it held that the trial court did not err when it granted the State's motion. Id. at 1255. The court observed that the defendant did not offer his defense until the last minute and gave no reason for the delay. Id. See also Denney v. State, 524 N.E.2d 1301, 1303 (Ind.Ct.App.1988),
trans. denied ( that alibi evidence was properly excluded where the defendant made no effort to timely comply with the notice statute and no belated effort to rectify the failure).
Here, Kroegher asked the trial court if he would be permitted to re-file his alibi defense more than three months before his trial began. However...
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