Lockhart v. State

• Decision Date: 07 October 1996
• Docket Number: No. 34A05-9511-CR-432,34A05-9511-CR-432
• Citation: 671 N.E.2d 893
• Parties: Cleverly P. LOCKHART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 893

671 N.E.2d 893

Cleverly P. LOCKHART, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 34A05-9511-CR-432.

Court of Appeals of Indiana.

Oct. 7, 1996.

William C. Menges, Jr., Kokomo, for Appellant-Defendant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

SHARPNACK, Chief Judge.

Cleverly P. Lockhart appeals his convictions for one count of child molesting, ¹ a class C felony, and three counts of child molesting, all class B felonies. Lockhart raises six issues for our review which we restate as:

(1) whether Lockhart was deprived of the right to an early trial;

(2) whether the trial court properly denied Lockhart's request to act as co-counsel of his defense;

(3) whether the trial court properly excluded evidence of Lockhart's medical record;

(4) whether the trial court properly admitted a handwriting exemplar into evidence;

(5) whether the evidence was sufficient to support the class C felony conviction; and

(6) whether the sentence was reasonable.

We affirm in part, reverse in part, and remand.

The facts most favorable to the judgment follow. In November of 1993, Lockhart moved into the house of his friend, Michelle Frazier. At first, Lockhart slept on a couch, but eventually began sleeping in the bedroom of Frazier's eleven year old son, J.R. Lockhart developed a close father-son relationship with J.R.

In January of 1994, while Lockhart and J.R. sat on the floor under a blanket and watched television, Lockhart reached over and placed his hand inside J.R.'s underwear. Lockhart rubbed J.R.'s penis for several minutes.

A couple of weeks later, Lockhart went into J.R.'s bedroom and locked the door. He told J.R. about oral sex and then pulled J.R.'s pants down. Lockhart placed his mouth on J.R.'s penis for several minutes.

One month later, Lockhart again entered J.R.'s bedroom and locked the door. He performed oral sex on J.R. and forced J.R. to perform oral sex on him. Afterwards, Lockhart placed his penis into a sock and masturbated until he ejaculated.

In March of 1994, Lockhart became angry with J.R. for not completing a household chore. Lockhart spanked J.R. and ordered him to go to his bedroom. Lockhart later went to J.R.'s bedroom to apologize. Lockhart told J.R. "how to make love to a guy" and then "french-kissed" J.R. Record, p. 448. Lockhart kissed J.R. all over his body and put his mouth on J.R.'s penis. Lockhart moved out of the house later that month. Before leaving, Lockhart told J.R. that if J.R. ever decided he was homosexual, he should contact Lockhart.

Approximately two weeks later, J.R. told his mother about the molestations. Frazier immediately reported the incidents to Child Protective Services.

On June 28, 1994, the State charged Lockhart with one count of child molesting as a class C felony and three counts of child molesting, as class B felonies. After a trial by jury on July 25, 1995, Lockhart was found guilty on all counts. Later, the trial court sentenced him to eight years for the class C felony conviction and twenty years for each class B felony conviction, to be served consecutively. However, the trial court reduced the total sentence to thirty years.

I.

The first issue for our review is whether the trial court deprived Lockhart of his right to an early trial. Our criminal rules allow an accused to be discharged because of the State's delay in bringing the case to trial. The applicable rule provides as follows:

"(B)(1) Defendant in Jail--Motion for Early Trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calender days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calender days because of the congestion of the court calender...."

Ind.Crim. Rule 4(B). Lockhart argues that his conviction should be reversed and he should be discharged because the trial was held beyond the seventy day period. However, a defendant may not move for a discharge for the first time on appeal. Sholar v. State, 626 N.E.2d 547, 549 (Ind.Ct.App.1993). The issue is waived when the defendant fails to make a motion to discharge prior to trial. Buza v. State, 529 N.E.2d 334, 337 (Ind.1988). Because Lockhart did not move for discharge at the time the trial court set the date outside the seventy day period, he waived the right to appeal the issue. See id.

Even assuming that Lockhart did not waive the issue, his right to an early trial was not denied. Pursuant to the rule, the trial court may, on its own motion, continue a trial outside of the seventy day period because of court congestion. Crim. R. 4(B)(1). The court calender may be congested by a variety of circumstances, including the unavailability of counsel. Loyd v. State, 272 Ind. 404, 398 N.E.2d 1260, 1265 (1980), reh'g denied, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. The reasonableness of the delay must be judged in the context of the circumstances, and the trial court's decision will not be disturbed absent an abuse of discretion. Sholar, 626 N.E.2d at 549.

Here, Lockhart filed a motion for early trial on April 13, 1995. The trial court initially scheduled a trial for June 6, 1995. On May 23, 1995, the trial court held a pre-trial conference, where defense counsel indicated that he had a conflict with the trial date because he had a trial scheduled to begin on June 5, 1995, and that he did not believe the trial would be finished by June 6th. Defense counsel requested that the trial court continue the trial until the following week.

The trial court, however, noted that it had three other trials commencing on June 13, 1995. The deputy prosecutor mentioned that she had a trial commencing on June 16, 1995. As a result, the trial court indicated that it would set the matter for a two to three day trial beginning on July 18, 1995. Defense counsel objected and stated that he could begin Lockhart's trial on June 7, 1995, because his other trial would only take two days. Defense counsel's other trial involved a charge of conspiracy to commit murder. A deputy prosecutor present for the State estimated that a conspiracy to commit murder case would take a minimum of three days to complete.

Based on this information, the trial court concluded that "it is highly doubtful that Defendant's counsel will be free to try this cause on June 7." Record, p. 7. The trial court then continued the cause until July 25, 1995. Lockhart argues that the trial court erred because it "based its determination of the likelihood of the availability of defense counsel, solely on the speculation of two deputy prosecuting attorneys, not involved in the potentially conflicting case." Appellant's brief, p. 8. Aside from this allegation, Lockhart fails to provide a developed argument or citation to authority in support of his contention that the trial court abused its discretion by taking the prosecutor's opinions into consideration.

The trial court considered the likelihood of defense counsel completing the trial and the impact that defense counsel's possible unavailability would have on the State and on the court. Given the fact that the conflicting trial involved a conspiracy for murder charge rather than a misdemeanor charge, we cannot say that the court abused its discretion in finding that defense counsel would be unavailable and for setting the trial date outside of the seventy day period because of court congestion. See Sholar, 626 N.E.2d at 549.

II.

The second issue for our review is whether the trial court properly denied Lockhart's motion to act as co-counsel in his defense. Because Lockhart asked to represent himself while also benefitting from the assistance of court-appointed counsel, his motion was a request for hybrid representation. See Myers v. State, 510 N.E.2d 1360, 1363 (Ind.1987). Lockhart argues that he has an absolute right to hybrid representation under the Indiana Constitution. ²

Both the United States and Indiana Constitutions guarantee a criminal defendant the right to the assistance of counsel. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13; see Boesel v. State, 596 N.E.2d 261, 262 (Ind.Ct.App.1992). Correlative to the right to counsel is the right of a criminal defendant to act pro se. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); Carter v. State, 512 N.E.2d 158, 162 (Ind.1987).

Our supreme court, however, has repeatedly refused to recognize a constitutional right to hybrid representation which is the right to proceed pro se and to be represented by counsel at the same time. Carter, 512 N.E.2d at 162; Myers, 510 N.E.2d at 1363; Averhart v. State, 470 N.E.2d 666, 689 (Ind.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323; Houze v. State, 441 N.E.2d 1369, 1371-1372 (Ind.1982); Bradberry v. State, 266 Ind. 530, 537, 364 N.E.2d 1183, 1187 (1977). Rather, the court has held that the decision of whether to grant a motion for hybrid representation is within the sound discretion of the trial court; we review that determination for an abuse of discretion. Myers, 510 N.E.2d at 1360. Further, where counsel is competent, the trial court may deny the motion for hybrid representation. Wallace v. State, 553 N.E.2d 456, 460 (Ind.1990), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991).

Lockhart recognizes the established precedent above, but argues that those cases are primarily based upon the sixth amendment of the federal constitution. As such, he sets forth the following argument:

"The one thing that all of these cases (other than Carter )[ ³] have in common is their reliance on the Sixth Amendment alone. Thus, the true holding of these cases must be considered to be that...