Lock v. State

• Decision Date: 12 May 1980
• Docket Number: No. 1278S284,1278S284
• Citation: 403 N.E.2d 1360,273 Ind. 315
• Parties: Donald LOCK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1360

403 N.E.2d 1360

273 Ind. 315

Donald LOCK, Appellant, v.STATE of Indiana, Appellee.

No. 1278S284.

Supreme Court of Indiana.

May 12, 1980.

Howard R. Cohen, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellantDonald Lock was charged in Allen Circuit Court with first degree (felony) murder, Ind.Code § 35-13-4-1(Burns 1975), and second degree murder, § 35-1-54-1.These charges arose out of the rape and stabbing death of Nena Wallis in Fort Wayne on February 20, 1974.The cause was venued, over appellant's objection, to the Marshall Circuit Court, and thereafter transferred to the Marshall Superior Court.The trial of this case began on July 6, 1978, and the jury returned guilty verdicts on both counts on July 21.

Appellant raises thirteen issues for our consideration on this appeal, concerning: (1) whether the Marshall Circuit Court erred in transferring the cause to the Marshall Superior Court; (2) whether the trial court erred, in several instances, in refusing to allow the defendant to act as co-counsel; (3) whether the trial court erred in allowing the prosecutor to question the defendant concerning his participation as co-counsel, his pro se motion for a change of venue, and a prior finding relating to appellant's competency; (4) whether the trial court committed error by admitting certain psychiatric testimony; (5) whether the trial court erred in admitting testimony from a physician concerning appellant's sanity; (6) whether appellant was denied the right to consult with his attorney; (7) whether the trial court denied appellant the effective assistance of trial counsel; (8) whether the trial court erred in permitting "Jane Doe" to testify; (9) whether the trial court erred in refusing to grant a change of judge; (10) whether the trial court committed error by sentencing appellant for his "natural life"; (11) whether the trial court erred in giving certain instructions and refusing certain instructions tendered by the defendant; (12) whether the trial court erred in refusing to instruct the jury after the jury requested an additional instruction; and (13) whether the evidence is sufficient to sustain the conviction.

I.

Appellant first claims error in the Marshall Circuit Court's transfer of this case to the Marshall Superior Court.Ind.Code § 33-5-35.5-16(Burns 1975), which is part of the statute creating the Marshall Superior Court, provides in part:

Transfer of cases from and to circuit court.The judge of the circuit court may, with the consent of (the superior) court, transfer any action, cause or proceeding filed and docketed in circuit court to (the superior) court . . . .

There is no question that this statute was fully complied with in this case.Judge Huff of the Marshall Circuit Court obtained the consent of Superior Court Judge Chipman before transferring the cause.Such a transfer was discretionary, and appellant does not allege or show an abuse of that discretion.

Appellant argues that, because this transfer was effected on the prosecutor's motion, the result was actually a change of venue from the judge.Therefore, appellant contends, the procedural requirements of a venue change should have been met in this case before the Marshall Superior Court could have assumed jurisdiction.As the State correctly observes, however, the court was not bound to act only sua sponte in transferring the cause.The mere fact that the prosecutor brought the matter to the court's attention did not transform the transfer into a change of venue from either the county or the judge.Further, the case remained venued in Marshall County, in a court of equal jurisdiction.Ind.Code § 35-5-35.5-3(Burns 1975).Moreover, even if the effect of the transfer was, as appellant claims, a change of venue from the judge, appellant can show no prejudice.While Judge Chipman of the Superior Court did assume jurisdiction after the cause was transferred, at some point in the proceedings another change of judge was effected, because the record reflects that Special Judge McLaughlin sat as trial judge in this case.This issue is without merit.

II.

Appellant Lock next argues the trial court erred in refusing to allow him to act as co-counsel in his cause.He cites four instances during the course of the proceedings in which, he claims, the court acted improperly in response to his attempts to assist in the conduct of the defense.Two of these instances involve actions taken by defense counsel on appellant's behalf, and two concern the trial court's refusal of appellant's requests to actively participate as co-counsel in the proceedings.Appellant was represented by at least one attorney of record when each of these instances arose.

Appellant filed a pro se motion for a change of venue from Allen and surrounding counties on August 29, 1974.Thomas Ryan, the Allen County Public Defender, was defense counsel at this time.The Allen Circuit Court granted appellant's motion and named six counties for the parties to strike and select from.Appellant then sent a letter to his attorney, naming the three counties he wished stricken.One of these was, of course, Marshall County.However, before the Public Defender's office received the letter, counsel met informally with the prosecutor and proceeded to strike counties.When appellant became aware that his cause had been venued to Marshall County, he again objected to venue.He now argues that because he personally filed the motion, only he could strike the counties which the Allen Circuit Court names in response to the motion.

This argument is without merit.First, appellant was represented by counsel at the time he filed this motion.He had given no indication that he wished to discharge his attorney and proceed pro se.SeeRussell v. State, (1978) Ind., 383 N.E.2d 309.As we noted in Bradberry v. State, (1977)266 Ind. 530, 536-37, 364 N.E.2d 1183, 1187, quotingFaretta v. California, (1975)422 U.S. 806, 820-21, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562, 573: "(W)hen a defendant consents at the outset to accept counsel as his representative, 'law and tradition may allocate to counsel the power to make binding decisions of trial strategy in many areas.' "It was within the trial court's discretion to accept and respond to this pro se motion.Allowing this hybrid representation which appellant wished to conduct was also purely discretionary with the court.Coonan v. State, (1978) Ind., 382 N.E.2d 157;Bradberry v. State, supra.

Secondly, even if the court had implicitly granted appellant the privilege of presenting a hybrid defense, appellant did not indicate when he filed this motion that he wished to personally participate in the striking of counties.Neither the court nor defense counsel was aware of appellant's alleged desire to personally participate in the striking.In fact, appellant's letter to his attorney indicated that he wished counsel to do the striking for him.Thus, it is obvious that appellant's present dissatisfaction is with the result, not with the fact that he was not able to personally participate in achieving that result.SeeRussell v. State, (1978) Ind., 383 N.E.2d 309, 312.The Allen Circuit Court did not err in allowing counsel to strike counties on appellant's behalf, and venue properly lay in the Marshall Circuit and Superior Courts.

The record indicates that a portion of the pretrial conference was held outside appellant's presence.Appellant contends that he was thus denied the effective assistance of counsel because he was not permitted to personally participate along with his attorney.However, appellant had no Sixth Amendment right to act as co-counsel.Coonan v. State, supra;Bradberry v. State, supra.Appellant's attorneys were, of course, present at the pretrial conference.We held in Ard v. State, (1958)238 Ind. 222, 149 N.E.2d 825, that a defendant's absence from proceedings other than trial, verdict and sentencing does not constitute error where he is represented by counsel and has not been denied his substantial rights.SeeCampion v. State, (1927)199 Ind. 129, 154 N.E. 802.Since the trial court here was not constitutionally required to accept appellant's hybrid form of representation, appellant had no Sixth Amendment right to be present at the pretrial proceedings.This argument is without merit.

This reasoning also applies to appellant's claim that he should have been allowed to participate as co-counsel during the trial of his cause.The proposed presentation of a hybrid defense was a matter properly committed to the trial court's discretion, and appellant Lock is a splendid example of why this must be so.The record in this case is full of instances in which Lock was abusive and disrespectful of the court, including a comment to the judge during arraignment that "(y)ou wouldn't make a scab on a judge's ass."Recordat 23.It appears that, in spite of this behavior, the trial court did allow Lock to employ a hybrid form of representation for some time.However, at some point in the proceedings, this privilege was revoked.This revocation apparently occurred sometime between October 7, 1976, and January 18, 1978.The record is silent regarding anything that occurred in this case in this time period.Thus, the specific reasons for the court's actions are not clear.However, approximately one week before the trial began, appellant and his attorneys moved that he be allowed to again act as co-counsel.This request was refused.In light of appellant's previous disruptive behavior, we do not believe the trial court abused its discretion by refusing this request.SeeCoonan v. State, supra;German v. State, (1978) Ind., 373 N.E.2d 880;Bradberry v. State, supra.See alsoIllinois v. Allen, (1970)397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.

Appellant Lock next asserts the trial court erred in refusing to allow...