Maez v. State

• Citation: 530 N.E.2d 1203
• Decision Date: 01 December 1988
• Docket Number: No. 20A04-8801-CR-28,20A04-8801-CR-28
• Parties: Daniel MAEZ, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1203

530 N.E.2d 1203

Daniel MAEZ, Appellant, v. STATE of Indiana, Appellee.

No. 20A04-8801-CR-28.

Court of Appeals of Indiana Fourth District.

Dec. 1, 1988.

Lee F. Mellinger, Elkhard, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant-appellant Daniel Maez, convicted by jury of robbery while armed with a deadly weapon, appeals and raises the following issues:

1. Did the trial court err in conducting Maez's trial in absentia?

2. Did the trial court err by commenting during voir dire concerning Maez's failure to testify, and in instructing the jury in preliminary and final instructions concerning Maez's failure to testify?

3. Did the trial court err in giving incomplete and confusing final instructions on the doctrine of reasonable doubt and the jury's duty to determine the law and the facts?

4. Did the trial court err in allowing the jury to have with them, during deliberations, jury instructions that had been marked upon and which contained case citations?

5. Was Maez denied effective assistance of trial counsel as a result of said counsel's failure to object to a trial in absentia or to request a continuance, or to object to comments or instructions concerning appellant's failure to testify, or to object to confusing, incomplete, marked or annotated instructions?

We affirm.

FACTS

The evidence at trial most favorable to the State as revealed in Maez's brief and adopted by the State is as follows:

"On or about April 14, 1985, a lone young man, carrying a duffle bag and motorcycle helmet, entered the Ponderosa Steakhouse located on Nappanee Street in Elkhart, Indiana. This individual engaged several of the store's employees in conversation and due to the nature and number of questions he asked, the managers on duty became suspicious. The managers requested a patron to keep an eye on the individual while he remained in the store.

Shortly before closing time, after finishing his order, this individual used the restroom, asked some more questions and then left. The managers' concern regarding this individual had been so heightened that immediately upon his departure the doors were locked and the police contacted.

The police arrived and checked the premises; found nothing out of order and departed. Shortly thereafter, despite the store supposedly being locked, this same young individual reappeared in the store brandishing a pistol. This individual accosted one of the store managers, who was at the cashier station, and ordered her into the office where the other store manager was working on the books. Once inside the office, the robber ordered the safe opened and while pointing a gun at the managers stuffed money from the safe into his pants. The robber then proceeded to leave, at which time other employees observed him leaving the scene on a motorcycle.

The police were called and their investigation revealed a duffle bag in the restroom that had previously been seen in the possession of the individual who had earlier been in the store.

Shortly after the incident one of the managers was able to place the face of the individual who had robbed the store as a former employee of the Ponderosa chain with whom she had attended a seminar several years before. This information was conveyed to the police, identifying the suspect as the Appellant, Daniel Maez. At about the same time the police received an anonymous tip identifying Daniel Maez as the perpetrator of the robbery.

Local police agencies were notified and on April 16, 1985, Maez was detained by Mishawaka Police Department. At this time [Maez] was found to be in possession of a key to a motorcycle.

Trial was commenced on December 1, 1986, at which time [Maez] was not present. Detective Art Kern testified concerning his investigation and the receipt of an anonymous tip naming [Maez] as the party responsible for the robbery. Detective Kern also identified the photo line up which was presented to the victims of the crime.

One of the store's managers, Melissa Bragg, testified concerning the events leading up to, and the robbery itself. She testified as to Maez's having a gun, and its use in the robbery. Her testimony regarding the gun was corroborated by witnesses Smith, Jon Strode, and Pletcher. Ms Bragg also testified as to her identification of the robber, and her prior meeting of [Maez] at a seminar. The identification of Maez as the robber was corroborated by witnesses Smith, Witmer, Lakes, and Pletcher.

The other manager, Regina Smith, testified concerning the robbery and the fear she felt during the robber's demand for money. This was corroborated by witness Bragg, and Jon Strode.

Witness Gary Dotson, the store supervisor, testified as to the amount of money taken in the robbery.

Witness Robert Blanche identified [Maez] as a former employee of the Ponderosa chain.

And, finally, witness David Riggle testified that he was present prior to the robbery because his friend, [Maez], had told him he was going to commit a robbery. Mr. Riggle also testified that Maez confessed to him, and that he had seen [Maez] with a drawer full of money after the robbery. Mr. Riggle also identified the duffle bag found at the scene as one he had loaned [Maez].

At the conclusion of the evidence, the jury deliberated and found [Maez] guilty of Robbery While Armed With a Deadly Weapon. Accordingly, the Trial Court sentenced [Maez] to ten (10) years."

Appellant's Brief, pp. 3-6.

DECISION

I. Trial in Absentia

Maez did not appear at his trial. The case was presented to the jury in his absence. He claims fundamental error occurred and requires reversal.

We note by way of background that Maez originally informed the court at his arraignment that he desired to employ private counsel. He never did so and the court eventually appointed the public defender to represent him. During the pendency of the action, Maez failed to appear for proceedings on February 27, 1986 and on November 20, 1986, and bench warrants for his arrest had to be issued. On December 1, 1986, the public defender moved to withdraw his appearance due to Maez's failure to communicate with him to prepare his defense. The court denied the motion. Maez had been informed of the trial setting both orally and in writing.

Maez cites several federal cases which support the proposition that the mere failure to appear at trial does not constitute a waiver of his constitutional right to be present at trial. U.S. v. Tortora (2nd Cir.1972) 464 F.2d 1202; Smith v. United States (5th Cir.1966) 357 F.2d 486; U.S. v. Benavides (5th Cir.1979) 596 F.2d 137.

The State counters with the fact that Maez's counsel did not object to the court conducting the trial in absentia and this constitutes a waiver of the issue, citing Bowens v. State (1985), Ind., 481 N.E.2d 1289. The State also points out that Maez concedes in his brief that the current status of the law on this issue in Indiana does not support his position. The State cites Carter v. State (1986), Ind., 501 N.E.2d 439, 440 where our supreme court stated the rule as follows:

"The rule is that the defendant must be personally present at every critical state of the proceeding unless he knowingly and voluntarily waives that right. The continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver.

Here, the record reveals that the appellant was personally advised of the trial date. He did not notify the trial court nor provide it with an explanation of his absence. Consequently, he knowingly and voluntarily waived his right to be present at trial. (citations omitted) (emphasis added)

The State points out that Maez had been advised of the trial setting orally and in writing. He had a history of ignoring the court proceedings, having twice failed to appear and failing to engage private counsel as he stated he would.

We find, under the authority of Carter, that Maez voluntarily and knowingly waived his constitutional right to be present in court.

II. Instructing the Jury on Maez's Right Not to Testify

During the voir dire of the jury and in the court's preliminary and final instructions, the court informed the jury that the defendant was presumed to be innocent, was not required to prove or explain anything, and that the burden of proving guilt beyond a reasonable doubt rested with the State throughout the entire trial. Further, the jury was instructed that a person charged with a crime cannot be compelled to testify or incriminate himself and should a defendant choose to remain silent, the jury has no right to draw any inference of guilt against the defendant from his silence. These instructions were given without objection of Maez's counsel.

Maez cites several cases which stand for the proposition that neither the trial court nor the prosecutor may comment directly or indirectly upon the defendant's failure to testify. He also claims that his counsel's failure to object to the instructions was not a waiver because giving them was fundamental error.

In Parker v. State (1981), Ind., 425 N.E.2d 628, the defendant did not testify at his trial. On appeal he contended the trial court erred in not giving a jury instruction, sua sponte, that the jury should not consider the defendant's failure to testify in arriving at its verdict. The court answered this issue as follows:

"[2-5] In Indiana the choice of whether or not the trial court instructs the jury on the defendant's failure to testify belongs to the defendant. To preserve error on this issue, the defendant must request an instruction. Hunt v. State, (1973), 260 Ind. 375, 381, 296 N.E.2d 116, 120. If the request is made, the trial court should advise the jury that it should not consider the defendant's failure to testify. Carter v. Kentucky (1981), 450 U.S. 288, 303-305, 101 S.Ct....