Olson v. State, 49S00-8808-CR-767

• Decision Date: 11 December 1990
• Docket Number: No. 49S00-8808-CR-767,49S00-8808-CR-767
• Citation: 563 N.E.2d 565
• Parties: Richard OLSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 565

563 N.E.2d 565

Richard OLSON, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8808-CR-767.

Supreme Court of Indiana.

Dec. 11, 1990.

Richard Olson, pro se.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Robbery, a Class C felony, for which he received a sentence of eight (8) years enhanced by thirty (30) years due to his habitual offender status.

The facts are: On June 21, 1986, Steven Reed, the victim, walked to the Pic-N-Go convenience store at approximately 1:30 p.m. While there he purchased some groceries and returned to his apartment around 2:00 p.m. Upon returning, he noticed a few men sitting across the street, and a few moments later he was accosted by two men who dragged him across the street, laid him on the ground, and stole 90 cents and the groceries from him. Reed positively identified one of the men who accosted him as appellant and stated that the man had been drinking. Appellant also told Reed that if he told anybody, he would kill him.

Reed went inside the apartment building and called the police. The police responded and took a description of the suspects. Reed then spoke to his neighbor, Mr. Miller, who let Reed use his telephone. Reed also gave Miller a description of the suspects. Approximately an hour and a half later, Miller knocked on Reed's door and informed him that he thought one of the suspects was in the parking lot. Reed went to Miller's apartment, looked out the window, and noticed appellant. Reed called the police, who arrived shortly after appellant left the parking area. A description of appellant was broadcast, and he was apprehended a short time later. Reed was taken to where appellant was being detained, and he identified him as the perpetrator.

Appellant first contends the court's final instruction on intoxication as a defense was fundamental error because it placed the burden of proving intoxication on him rather than requiring the State to negate the existence of intoxication.

Fundamental error is an exception to the general rule requiring an objection to be made at trial to preserve error for an appeal. To fall within this exception, the error must be such that if not rectified it would deny the defendant fundamental due process. Johnson v. State (1979), 271 Ind. 145, 390 N.E.2d 1005, cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312.

The trial court instructed the jury as follows:

"Voluntary intoxication is no defense in criminal proceedings unless it can be shown that the accused was so intoxicated as to be incapable of forming the specific intent necessary to commit the crime. The burden of proving this defense is on the defendant. The intoxication must be of such a degree as to deprive him of the power to deliberate or form the necessary design or guilty intent. Mere intoxication, in the absence of some mental incapacity resulting therefrom as will render a person incapable of thinking deliberately and meditating rationally cannot be regarded as sufficient. The mental incapacity must render a person incapable of appreciating the wrongfulness of his conduct or of conforming his conduct to the requirements of law in order to be sufficient to relieve one of the responsibility for his acts. So long as the accused is capable of conceiving a design, he will be presumed, in the absence of contrary proof, to have intended the natural consequences of his own acts."

To support his argument, appellant cites the recent decision by this Court in Powers v. State (1989), Ind., 540 N.E.2d 1225. In Powers, this Court was confronted with a similar issue. There the trial court instructed the jury that the defendant had to prove "beyond a reasonable doubt" that he did not have the mental capacity to form intent.

The instruction in the instant case, unlike that in Powers, did not require appellant to prove his defense "beyond a reasonable doubt." Further, in the instant case, there was no objection to the instruction and no tender of a proper instruction. Therefore, we must determine if the giving of the instruction was fundamental error. Other instructions, one preliminary and one final, correctly informed the jury that the State had the burden of proving every element beyond a reasonable doubt. Intent was one of those elements. Although the instruction could have been worded more artfully, when taken with other instructions we cannot say that the giving of the instruction was fundamental error. See, Johnson, supra.

Appellant contends that he was denied effective assistance of trial counsel. Specifically, he contends trial counsel was ineffective for 1) failing to properly impeach the victim, 2) failing to obtain appellant's medical records which would have shown his alcoholism, and 3) failing to object to the court-ordered mistrial where the jury could not reach a verdict on the habitual offender count.

In Smith v. State (1989), Ind., 547 N.E.2d 817, this Court reiterated the standard of review for incompetency of counsel. We held that to succeed in such claim the appellant must prove that counsel's representation fell below a standard of reasonableness and that counsel's failure to function was so prejudicial as to deprive him of a fair trial.

We note that although appellant lists different areas where his counsel was ineffective, he does not show resulting prejudice. With regard to appellant's first allegation, discrepancies in the victim's testimony were brought to the attention of the trier of fact by counsel. However, these contradictions did not involve the identification of appellant. The method of impeaching a witness is considered a trial tactic which we will not review. We cannot say this amounted to ineffectiveness of counsel.

Appellant contends counsel failed to produce his medical records, claiming the records would have demonstrated his alcohol abuse. Appellant's argument here fails because these records would have demonstrated only his prior medical problems, not that appellant was so intoxicated at the time of the crime that he was unable to form intent. We cannot say these medical records were so significant as to amount to prejudice under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Appellant argues that counsel was ineffective in failing to object to the trial court ordering a mistrial on the habitual offender proceeding. We do not agree. Nowhere in the record is it shown that prejudice resulted to appellant. We cannot say that counsel's failure to object to this order was no more than a trial tactic. We find no error.

Appellant contends the trial court abused its discretion and denied him due process when it refused to continue the case even though counsel had been appointed just two days prior to trial.

The record reveals that two days prior to trial, the court held a hearing on various motions including a motion on which attorney would represent appellant at trial. Appellant indicated in a prior motion and at the hearing his desire to proceed to trial. Additionally, three attorneys were involved in this case and a determination was made at the hearing as to which attorney was going to represent appellant since he did not wish to proceed to trial pro se. The record indicates that Mr. Litz was appellant's attorney at the time and was asked by appellant to withdraw due to a deterioration in their relationship. Another attorney, Mr. Sexson could not be there on the day of the trial. The third attorney, Mr. Hollander, who was eventually appellant's trial counsel, was familiar with the case and had been appellant's pauper counsel for some months before the trial but had been removed pursuant to appellant's request. The court found that because appellant wanted to proceed to trial and had withdrawn his motion to proceed pro se, counsel was required. Upon examining the status of the case, the trial court appointed Mr. Hollander to proceed with the case, and appellant agreed.

Ruling on a motion for continuance is within the trial court's discretion and will not be reversed absent a clear showing of an abuse of discretion. Carter v. State (1983), Ind., 451 N.E.2d 639. Continuances to allow more time for preparation are not favored and are granted only by showing good cause and in the furtherance of justice. Rhinehardt v. State (1985), Ind., 477 N.E.2d 89. In addition, as was pointed out in Marshall v. State (1982), Ind., 438 N.E.2d 986, 988:

"The adequacy of time allowed for preparation must be determined on a case by case basis, considering the totality of the circumstances, including the complexity of the issues, the necessity for pretrial motions, the necessity to interview witnesses and whether the defendant is able to assist in the preparation."

Appellant contends the appointment just two days prior to trial was inadequate time to prepare for trial. However, we note that appellant requested to go to trial at that time, dropped his motion to proceed pro se, accepted the counsel appointed by the court, and made the decision to drop other counsel. In addition, appellant's appointed counsel had been in the case before and was familiar with the facts surrounding the crime. From the totality of the circumstances, we cannot say the trial court erred in denying the motion to continue.

Appellant contends the trial court erred in denying his request for treatment in lieu of prosecution. The record shows that appellant filed his request for treatment in lieu of prosecution pursuant to Ind.Code Sec. 16-13-6.1-16, to which the State objected. At the hearing, appellant again made this request which the trial court again denied.

Ind.Code Sec. 16-13-6.1-16 provides in pertinent part:

"A drug abuser or alcoholic charged with or convicted of a felony may request treatment under the supervision of the department instead of prosecution or imprisonment, as the case may be, unless:

(1)...