Osborne v. State

• Decision Date: 13 September 2001
• Docket Number: No. 34S00-0009-CR-531.,34S00-0009-CR-531.
• Citation: 754 N.E.2d 916
• Parties: Rickey OSBORNE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

754 N.E.2d 916

Rickey OSBORNE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 34S00-0009-CR-531.

Supreme Court of Indiana.

September 13, 2001.

754 N.E.2d 919

William C. Menges, Jr., Howard County Public Defender, Kokomo, IN, Attorney for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.

754 N.E.2d 917

754 N.E.2d 918

RUCKER, Justice

A jury convicted Rickey Osborne of attempted murder, burglary, and robbery in connection with the iron bar and hammer beating of Dan Williams. Osborne then pleaded guilty to being a habitual offender. The trial court sentenced Osborne to a total term of 100 years. In this direct appeal, we address the following rephrased issues: (1) did the trial court deny Osborne his right of self-representation; (2) did the trial court err by admitting into evidence Osborne's confessions; (3) did the trial court erroneously allow two testifying police officers to remain in the courtroom throughout the trial despite ordering a separation of witnesses; (4) was the evidence sufficient to support Osborne's conviction for attempted murder; and (5) did

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the trial court's use of Osborne's pre-trial conduct to both convict him of criminal contempt and enhance his attempted murder conviction violate the Double Jeopardy Clause of the United States Constitution.

We affirm the trial court.

Facts

The facts most favorable to the verdict show that on the afternoon of December 5, 1998, Osborne and his twenty-year-old nephew Charles Osborne broke into the Kokomo home of Dan Williams because they knew he kept large sums of money in his house. While Osborne and Charles were searching for money, Mr. Williams came home. Osborne and Charles hid in the basement. Osborne then instructed Charles to find something with which to hit Mr. Williams. Charles decided on a hammer, and Osborne selected an iron bar. When Osborne and Charles went back upstairs, Osborne struck Mr. Williams approximately seven times in the head and face with the iron bar and hammer, and then Charles struck him approximately twelve times with the hammer. Osborne took Mr. Williams' wallet from his pants pocket, which contained $1,000 in cash. Osborne and Charles then fled the scene. Despite his injuries, Mr. Williams was able to call 911.

Police apprehended Osborne and Charles near Mr. Williams' house shortly after the 911 call. Police returned them to the crime scene, but Mr. Williams was unable to make a positive identification. Police then released Osborne and Charles. However, Charles later confessed to the crimes and implicated Osborne. A warrant was issued for Osborne's arrest, and police apprehended him two days later in Madison County.

The State initially charged Osborne with burglary and robbery. Thereafter, the State filed an amended information adding the charge of attempted murder and alleging that Osborne was a habitual offender. A jury convicted Osborne of attempted murder, burglary, and robbery. He then pleaded guilty to being a habitual offender. The trial court sentenced Osborne to presumptive, concurrent sentences of thirty years for burglary and ten years for robbery and also ordered an enhanced, consecutive forty-year sentence for attempted murder, increased by thirty years for the habitual offender status. Osborne now appeals. Additional facts are set forth below where relevant.

Discussion

I.

Osborne first contends the trial court denied him his right to self-representation. The basis of a defendant's right to self-representation under the Sixth Amendment of the United States Constitution was articulated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the United States Supreme Court held that a State may not "constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." Id. at 807, 95 S.Ct. 2525. The Court acknowledged that when a defendant manages his own defense, he relinquishes many of the traditional benefits associated with the right to counsel, such as an attorney's training and experience, and may even "conduct his own defense ultimately to his own detriment." Id. at 834-35, 95 S.Ct. 2525. Therefore, the Court declared that in order for an accused to represent himself, he must knowingly, intelligently, and voluntarily forgo these relinquished benefits. Id. at 835, 95 S.Ct. 2525.

However, before waiving these benefits, a trial court must make an accused "aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with

754 N.E.2d 921

eyes open.'" Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). "There are no prescribed `talking points' the court is required to include in its advisement to the defendant; it need only come to a considered determination that the defendant is making a voluntary, knowing, and intelligent waiver." Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.2001).

In addition, although a defendant need not have the skill and experience of an attorney, he must be competent to stand trial. Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). That is, he must have the mental capacity to understand the proceedings. Id. at 401 n. 12, 113 S.Ct. 2680. Before claiming that his right to self-representation has been denied, a defendant must timely, clearly, and unequivocally assert that right. Dobbins v. State, 721 N.E.2d 867, 871 (Ind.1999); Sherwood v. State, 717 N.E.2d 131, 135 (Ind.1999). If a defendant's right to self-representation has been denied, a new trial is warranted because this right is not subject to harmless error analysis. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

Osborne's initial hearing took place on December 10, 1998. At that time, the trial court advised him of the charges of burglary and robbery:

JUDGE PARRY: Now you understand, Mr. Osborne, you have the right to be represented by counsel, someone you hire that you choose and pay for or if you want an attorney but cannot afford to hire one, you can ask for the appointment of the public defender to represent you at no cost or you can represent yourself without counsel, you understand those choices?

THE DEFENDANT: Sure do.

JUDGE PARRY: What do you intend to do about an attorney, sir?

THE DEFENDANT: I'll represent myself.

JUDGE PARRY: Not by me. You'll get the public defender. With a Class A felony—

R. at 263-64. The State filed an amended information on January 14, 1999. The trial court held a second initial hearing on the additional charges of attempted murder and habitual offender status on January 21, 1999. At this initial hearing, the following discussion took place:

JUDGE PARRY: Now as to these other two charges you have the same rights as you had previously as to the original ones. In fact your trial is already set. You have the right to counsel, which you have. You have the right to a speedy trial, which you asked for, and you have the right to confront witnesses. Those rights all remain again for these, you understand that?

THE DEFENDANT: Yes, Your Honor.

R. at 272 (emphasis added). Osborne made no request for self-representation at the second initial hearing.

We first observe that it would have been better practice for the trial court to determine Osborne's competency and advise him of the perils of proceeding pro se before ruling on his request to represent himself. See Dobbins, 721 N.E.2d at 872 ("Generally, a trial court should conduct a pre-trial hearing to determine a defendant's competency to proceed without counsel and to establish a record of a defendant's waiver of his right to counsel."). However, by not acting consistent with his earlier request to represent himself when the trial court advised him during the second initial hearing of his rights regarding counsel, Osborne acquiesced in the presentation of his defense by appointed counsel. See Sherwood, 717 N.E.2d at 136 (in arriving at the conclusion that the defendant's right to self-representation

754 N.E.2d 922

was violated, this Court found significant that "[t]hroughout the entire trial, [the defendant] at no time acquiesced in the presentation of a defense by appointed counsel."); cf. Stone v. State, 531 N.E.2d 191, 194 (Ind.1988) (declaring that when a defendant makes a motion for a speedy trial, he is required to maintain a position which is reasonably consistent with that request; otherwise, he is considered to have abandoned the request, and the motion ceases to have legal viability). We therefore conclude that the trial court did not violate Osborne's right to self-representation.

II.

Osborne gave two confessions to police: one on the way to the police station and the other, which was tape-recorded, at the police station. The trial court, over defense counsel's timely objections, admitted both statements into evidence. In this appeal, Osborne challenges their admission on the ground that they occurred after he requested an attorney. Once a suspect asserts the right to counsel, police must cease interrogation until counsel is present or the suspect initiates further communication with police. Minnick v. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, the initiation of further communication by an accused, standing alone, is not sufficient to establish a waiver of the previously asserted right to counsel. Grimm v. State, 556 N.E.2d 1327, 1330 (Ind.1990). If the accused is found to have initiated further communication, then the subsequent inquiry is whether there is a valid...