Mitchell v. State

• Decision Date: 21 December 1979
• Docket Number: No. 978S184,978S184
• Citation: 398 N.E.2d 1254,272 Ind. 369
• Parties: Robert MITCHELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1254

398 N.E.2d 1254

272 Ind. 369

Robert MITCHELL, Appellant, v. STATE of Indiana, Appellee.

No. 978S184.

Supreme Court of Indiana.

Dec. 21, 1979.

Mark Peden, Foley, Foley & Peden, Martinsville, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Robert Mitchell was tried by a jury in Brown Circuit Court and found guilty of theft, Ind.Code § 35-17-5-3 (Burns 1975), two counts of automobile banditry, § 35-12-2-1, possession of burglary tools, § 35-13-8-1, and was found to be a habitual criminal, § 35-8-8-1. The court sentenced appellant to life imprisonment. He raises nine issues for our review here: (1) whether the trial court erred in denying a motion for continuance on the morning of trial; (2) whether the trial court erred in arraigning appellant on the habitual criminal charge, after he was found guilty of the four charges enumerated above, without granting a continuance; (4) whether the trial court erred in allowing the prosecuting attorney to cross-examine appellant concerning his commission of other crimes; (5) whether the life sentence imposed under the habitual criminal statute is unconstitutional; (6) sufficiency of the evidence of theft; (7) sufficiency of the evidence for automobile banditry under Count three; (8) sufficiency of the evidence for automobile banditry under Count four; and (9) sufficiency of the evidence regarding the conviction for possession of burglary tools.

On November 8, 1975, security police discovered that a number of television sets had been removed from the maintenance building adjacent to the Brown County Inn. The condition of the door to the building indicated there had been forced entry, because there were scratch marks around the door striker plate and lock, and on the door itself. Wire caging had been cut, and the padlock securing the door had been cut. Police officers found footprints in the mud around the shed and followed them to a wooded area adjacent to the baseball diamond, which was located near the maintenance shed. The stolen television sets were found stacked in the woods. One set of the footprints displayed had a diagonal mark across the heel. Tire marks also led from nearby State Road 46 to the baseball diamond and then back to the road.

Henry Champion, a security officer for the Brown County Inn, testified that on November 8, at approximately 12:30 a. m., while making a routine patrol through the motel complex, he noticed a vehicle that appeared to be disabled or stuck in the mud on the baseball diamond. Shortly thereafter, he noticed a tow truck arrive and help remove the disabled automobile. He notified the sheriff of this incident. The police then took up a position within the Inn to enable them to observe the location of the television sets through binoculars. At approximately 6:00 p. m., on that day, a pick-up truck stopped along State Road 46 near the Inn. Appellant Mitchell and his co-defendant, Stewart, were observed transporting the television sets from the woods to the pick-up truck. They then left with the television sets loaded on the pick-up truck. Mitchell and Stewart were later arrested. They had hidden the television sets and some bolt cutters at the residence of appellant's uncle. In addition, the print of Stewart's shoes matched the footprint with the diagonal line found earlier by the police. Pursuant to a search warrant, the police searched appellant Mitchell's automobile and found burglary tools which matched the marks left on the maintenance shed door and striker plate. The police also found mud samples on the car which were determined to be from the baseball diamond.

I.

On the day the trial was to begin, March 28, 1978, appellant was represented by attorney Fawcett, who had been appointed by the court as pauper counsel. Appellant appeared on this date with Fawcett and attorney Blum, his proposed private counsel. Blum moved for a continuance so that he might familiarize himself with Mitchell's case. Blum requested a continuance of forty-five days. However, attorney Fawcett stated to the court that he was prepared for trial and was willing to proceed. The trial court denied appellant's motion for a continuance.

The allowance of a continuance at this point in the proceedings, occasioned by the requested substitution of trial counsel, was within the discretion of the trial judge. His judgment can rise to the level of error and be questioned by us only if it appears that he abused his discretion to the detriment and prejudice of the defendant. German v. State, (1978) Ind., 373 N.E.2d 880, 882; Magley v. State, (1975) 263 Ind. 618, 624, 335 N.E.2d 811, 816; Jones v. State, (1978) Ind.App, 371 N.E.2d 1314, 1316. In Jones, the Court of Appeals found the trial judge had in fact abused his discretion when he denied the defendant a continuance, where the appointment of pauper counsel had come so close to the time of trial that the defendant had only three hours to consult with his attorney. On the other hand, in German, supra, the defendant first notified the court he was firing his attorney on the morning of trial after the jury had been impaneled. The attorney who had been counsel of record for four months was unaware that defendant was considering discharging him until such motion was filed. We found in German that the court properly denied a motion for continuance and forced the defendant to go to trial on the date scheduled. In making this determination, this Court stated:

"It is clearly established that a defendant charged with having committed a felony be allowed representation by counsel. Gideon v. Wainwright, (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Nevertheless, a defendant may not through a deliberate process of discharging retained or assigned counsel whenever his case is called for trial disrupt sound judicial administration by such delaying tactics."

373 N.E.2d at 882.

In this case there was a period of some two and one-half years during which appellant changed counsel many times. The court appointed counsel to represent him on November 10, 1975. In the ensuing years before trial, there were four separate appointments of pauper counsel for Mitchell, interspersed by his request for removal from pauper status so that he could hire private counsel. This request was granted, but Mitchell later discharged his private counsel and again had pauper counsel appointed. Appellant's assertion that he was notified of the trial setting by his attorney only six days before he actually went to trial, leaving him no time to make a decision as to whether to hire private counsel for his trial, is not convincing under the facts here. The trial date was set well ahead of time, sufficient for all to be advised and take part in it. Mitchell's appointed counsel stated to the court that he was aware of the trial setting in ample time and that he was prepared to try the case. He further indicated that his client had been notified and was ready to go forward. In view of the long history of substitutions and continuances in the record, the trial court did not abuse its discretion by denying the motion for a continuance so that appellant might again substitute counsel on the morning of trial. No error is presented on this issue.

II.

On March 27, 1978, one day before the trial date, appellant filed his notice of alibi. On the following day the court sustained the State's motion to strike the alibi notice. Appellant now claims this was error.

Ind.Code § 35-5-1-1 (Burns 1975) provides that a defendant must serve his notice of alibi upon the prosecuting attorney at least ten days before trial. Additionally, § 35-5-1-3 provides that if the alibi notice is not timely filed, the court shall, in the absence of a showing of good cause for such failure, exclude the evidence offered by the defendant to establish an alibi. Appellant does not show good cause for his failure to timely file his notice of alibi. As pointed out in Issue I above, this cause stood pending for some length of time with a great deal of activity, and the trial date was set well in advance. Thus, appellant had ample time to file his notice of alibi. Since he failed to show good cause for failing to timely file the motion, and since it was filed only one day before trial, the court was justified in striking the notice and excluding any evidence relating to an alibi defense. Stapp v. State, (1972) 259 Ind. 330, 333, 287 N.E.2d 252, 253-54; Fields v. State, (1977) Ind.App., 367 N.E.2d 36, 38.

III.

Count eight of the information charged appellant Mitchell with being a habitual criminal. He was arraigned on that charge and entered a plea of not guilty. On August 19, 1976, nine months after the original charge was filed, Count eight was amended by the State. The amended count charged appellant with having been convicted of and having served sentences for crimes different from those alleged in the original Count eight. Due to an apparent oversight, appellant was never actually arraigned on this amended count before trial. The court discovered this omission after the jury had returned its guilty verdict on the four substantive charges and when all were ready to proceed on the bifurcated habitual criminal phase of the trial. The court arraigned appellant on this charge at that time. Though the record was poorly transcribed, it appears that Mitchell's only complaint to the court was that he had to go to trial with his present attorney, rather than the one he asked the court to allow him to substitute at the beginning of the trial. He then entered a plea of not guilty to the habitual criminal charge. Neither he nor his attorney objected to the fact that the arraignment came at this point rather than prior to trial. The court therefore went forward with the trial on this charge.

This Court established the procedure to be followed in a habitual criminal charge in ...