Owen v. State
Decision Date | 02 November 1978 |
Docket Number | No. PS,PS |
Citation | 269 Ind. 513,381 N.E.2d 1235 |
Parties | Richard Lee OWEN, Appellant, v. STATE of Indiana, Appellee. 397. |
Court | Indiana Supreme Court |
Richard Lee Owen II, pro se.
Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted, on October 15, 1976 in the St. Joseph Circuit Court, of the crime of commission of a felony while armed with a dangerous or deadly weapon. He was sentenced to a determinate term of twenty-seven years imprisonment. The crime in question is the shooting of South Bend Police Officer Maurice Woods during a routine investigatory stop of appellant's automobile. Woods was shot three times in the arm, chest, and back, and then played dead while his assailant wrapped him in barbed wire.
Appellant, who represented himself at trial, continues to proceed pro se at the appellate level. He has authored and signed his appellate brief and reply brief, which are presently before this court. While the right to appear pro se at the trial level is guaranteed by the Sixth Amendment of the United States Constitution and the case of Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, there is disagreement about whether the federal self-representation right extends to appeals. Compare In re Walker, (1976) 56 Cal.App.3d 225, 128 Cal.Rptr. 291, And Callahan v. State, (1976) 30 Md.App. 628, 354 A.2d 191, With People v. Stephens, (1976) 71 Mich.App. 33, 246 N.W.2d 429, And Webb v. Texas, (Tex.Crim.App.1976) 533 S.W.2d 780. See also Faretta, supra, 422 U.S. at 816, 95 S.Ct. at 2531, 45 L.Ed.2d at 371, Citing Price v. Johnston, (1948) 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. However this may be, self-representation has traditionally been allowed in this state at both the trial level, See Placencia v. State, (1971) 256 Ind. 314, 268 N.E.2d 613, And Todd v. State, (1948) 226 Ind. 496, 81 N.E.2d 530, 81 N.E.2d 784, and at the appellate level, See, e. g., Fender v. Lash, (1973) 261 Ind. 373, 304 N.E.2d 209, And State ex rel. Sanders v. Reeves, (1950) 228 Ind. 293, 91 N.E.2d 912.
While we have customarily heard pro se appeals, there are many reasons why we exercise great discretion in doing so. Most importantly, a decision to proceed pro se at any level is a waiver of the right to counsel, and the record must demonstrate a "knowing and intelligent" waiver of such right. Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2451, 45 L.Ed.2d at 581; German v. State, (1978) Ind., 373 N.E.2d 880, 882-83; Wallace v. State, (1977) Ind.App., 361 N.E.2d 159, Trans. denied, (1977) Ind., 366 N.E.2d 1176. The record in this case convinces us, at many points, that counsel was waived knowingly and intelligently both for trial and appeal. We have further discretion to inquire whether the pro se appeal before us is appellant's own work, prepared without the assistance of other prison inmates. Cf. Baker v. Arkansas, (8th Cir. 1974) 505 F.2d 750. It is well settled that there is no constitutional right to lay assistance or lay counsel at either trial or appeal, under either the Sixth Amendment or Faretta 's concept of the defendant's "personal autonomy." See generally United States v. Whitesel, (6th Cir. 1977) 543 F.2d 1176; United States v. Taylor, (7th Cir. 1978) 569 F.2d 448, Cert. denied, (1978) 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803; United States v. Kelley, (9th Cir. 1976) 539 F.2d 1199, Cert. denied, (1976) 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332; Turner v. American Bar Ass'n, (N.D.Tex.1975) 407 F.Supp. 451. We are satisfied that the present appeal is truly appellant's work, in light of comparison of it to the motions and arguments he made at trial. Finally, we have complete discretion to regulate attempts at pro se oral argument on appeal. See Price v. Johnston, supra; Gilday v. Commonwealth, (1977) 77 Mass.Adv.Sh. 2369, 369 N.E.2d 716. Such an argument has been requested by appellant in this case, which we hereby deny without further comment.
While we have chosen to review the present appeal, we note that the pro se appellant proceeds at the same risk as any other party before this court. As stated in State ex rel. Sanders v. Reeves, supra, 228 Ind. at 294-5, 91 N.E.2d at 912:
"The office of Public Defender was created for the benefit of those wrongfully imprisoned, as well as to aid the courts in administering justice, but when a prisoner elects to represent himself, there is no reason for this court to indulge any benevolent presumption in his behalf, or waive any rule for the orderly and proper conduct of litigation and appeals."
See also State ex rel. Ross v. Lake Criminal Court, (1965) 276 Ind. 603, 209 N.E.2d 30. Thus, the same standards for drafting of motions to correct errors and appellate briefs apply to pro se appellants as they do to others, and errors are waived if such rules are not complied with. See generally Guardiola v. State, (1978) Ind., 375 N.E.2d 1105. We cannot become advocates for the appellant, and we will not review arguments that are poorly developed, wholly undeveloped, or improperly expressed. See State v. Harrison, (Mo.App.1976) 539 S.W.2d 119. Also, it is no excuse for a poor pro se presentation on review that it was done on reliance on non-lawyers, such as appellant's fellow inmates in the prison writ room. See Commonwealth v. Shaffer, (1977) 475 Pa. 256, 380 A.2d 341. With these considerations understood, we proceed to review the present pro se appeal.
Appellant argues twenty-one specified errors in his pro se briefs before this court, some of which contain multiple allegations of error. Many of these allegations are specious, redundant, waived, or based on citation of irrelevant authority. Also, much of what is asserted here is couched in poor grammar, to a point approaching an incoherence which makes meaningful review of this trial difficult. Undoubtedly, this state of presentation results to a great extent from appellant's lack of legal training. However, as stated above, we have chosen to review this trial as it is presently presented, and to the extent possible.
The errors argued on this appeal, and our response to them, are as follows:
Appellant argues that he was charged in an information with commission of a felony while armed with a dangerous or deadly weapon, and with assault and battery with intent to kill. The essence of the argument seems to be that one of these counts should have been dismissed, since they both referred to the same shooting and were therefore multiplicious. There is no merit to this argument, since this type of information is proper under Ind.Code § 35-3.1-1-9(a)(2) (Burns Supp.1978), and has been approved by this court on prior occasions. Vaughn v. State, (1978) Ind., 378 N.E.2d 859, 863; Carter v. State, (1977) Ind., 361 N.E.2d 145, 149.
Appellant argues that evidence seized from his hotel room should have been suppressed. He argues that he did not consent to this search, and that he was not advised of his Fourth Amendment rights. The evidence is conflicting on the question of consent; two police officers testified that appellant told them, after he was booked, to go to his hotel room and obtain his personal belongings. Appellant, purportedly, then grinned and added that if they found anything other than his clothing and shaving gear that he did not know anything about it. This court on appeal cannot reweigh conflicting evidence upon which a trial court based its findings on a motion to suppress. Lane v. State, (1977) Ind., 364 N.E.2d 756, 759. Insofar as appellant claims that advisement of Fourth Amendment rights prior to a consent search is constitutionally necessary, this argument has no merit. Schneckloth v. Bustamonte, (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. In any event, appellant waived any error here because of failure to object to the admission of these seized exhibits at the time of their admission at trial. Stowers v. State, (1977) Ind., 363 N.E.2d 978, 984.
Appellant next argues that there was a tainted pre-trial videotape line-up identification procedure. Appellant at trial merely argued in conclusory fashion that the procedure was "tainted." No evidence was presented to support any reason for suppression of the testimony of the identifying witnesses. He also argues that this procedure was done in the absence of counsel. However, appellant at that time was vehemently insisting on representing himself. The errors alleged here are thus wholly specious.
Appellant argues that he was denied discovery of police personnel files relating to the victim, Maurice Woods. Appellant admits that he did not know what was in such files, but merely asserts that they might have helped him and substantiated his version of events. We have recently dealt with an identical argument and found it to be without merit. Vaughn v. State, (1978) Ind., 378 N.E.2d 859, 864.
Appellant next challenges the trial court's denial of appellant's motion to obtain an informant's name. The person referred to by appellant did nothing more than to supply the police with a photograph of appellant. This person was thus not an "informant" within the meaning of any authority cited to this court by appellant, and we perceive no harm accruing to appellant through the admission of this photograph at trial. In any event, appellant failed to object when the photograph was admitted into evidence at trial. Without such objection, the state was not required to disclose the source of the photograph. Hewitt v. State, (1973) 261 Ind. 71, 78, 300 N.E.2d 94, 98.
Appellant next argues that photographs shown to the victim, Maurice Woods, were not turned over to him pursuant to his discovery request. No record was kept on which photographs were shown to the victim by the police in the identification procedures early in the investigation of this case, because no positive identification resulted from the display. There was thus nothing in the possession of ...
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