Perry v. State

• Decision Date: 30 November 1984
• Docket Number: No. 782S264,782S264
• Parties: James L. PERRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 270

471 N.E.2d 270

James L. PERRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 782S264.

Supreme Court of Indiana.

Nov. 30, 1984.

Ralph Ogden, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Attempted Burglary, a class C felony, Ind.Code Secs. 35-41-5-1 and 35-43-2-1 (Burns 1979) and was found to be an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1984). He was sentenced to thirty-five years imprisonment.

The Defendant's direct appeal presents nine issues for our review which we have consolidated into eight (8) issues as follows:

1. Whether the charging information sufficiently charged the offense of attempted burglary;

2. Whether the trial court erred in denying Defendant's motion for discharge pursuant to Criminal Rule 4(B);

3. Whether the trial court erred in denying Defendant's request to have him examined to determine his competency to stand trial;

4. Whether the trial court erred when it held the trial in Defendant's absence;

5. Whether the trial court erred in denying Defendant's motion to dismiss the jury panel;

6. Whether the trial court erred when it admitted into evidence Defendant's statements to the police;

7. Whether the evidence is sufficient to sustain the conviction for attempted burglary;

8. Whether the habitual offender proceedings placed Defendant twice in jeopardy for the same offense.

The record disclosed that on January 15, 1981, two Anderson police officers responded to a burglar alarm call at Allen's Jewelry and Loan Company and apprehended the Defendant and an accomplice on the roof of the building. The owner of the store testified that a hole, which was discovered in the roof, had not been there earlier in the evening when he had closed the store. Police recovered a hatchet type hammer, a tire iron, and a knife from the roof near the hole. They also recovered a yellow pillow case which had been tied around the accomplice's neck.

ISSUE I

Defendant's first assignment of error challenges the sufficiency of the charging information. Defendant failed to raise the issue at trial or in his motion to correct errors, but he argues that the alleged defects in the information constituted fundamental error. "To be categorized as fundamental error and thus to transcend our procedural requirements, the error must be blatant, and the potential for harm must be substantial and appear clearly and prospectively." Nelson v. State, (1980) 274 Ind. 218, 409 N.E.2d 637, 638. Without determining whether the error complained of was blatant, we find that the second requirement of Nelson has not been satisfied. The Defendant has neither attempted to show us how the preparation of his defense was impeded nor demonstrated how he was otherwise harmed. Rufer v. State, (1980) 274 Ind. 643, 413 N.E.2d 880, 882-883.

ISSUE II

On September 16, 1981 and October 1, 1981, Defendant filed pro se motions for an early trial pursuant to Criminal Rule 4(B), which provides that a defendant shall be discharged if not brought to trial within seventy (70) days of a motion for an early trial. He filed a third motion for a speedy trial on October 7, 1981. On November 2, 1981, a trial date of January 19, 1982 was confirmed without objection. Defendant then filed a motion for discharge on November 18, 1981, which motion was denied on November 23, 1981.

This Court has held that when a defendant files a second or subsequent motion for a speedy trial, he is deemed to have abandoned the earlier motions. Rutledge v. State, (1981) Ind., 426 N.E.2d 638, 640. It is, therefore, the date of the final motion, October 7, 1981, from which the seventy-day period began to run. As a consequence, Defendant should have been brought to trial on or before December 16, 1981. However, on November 2, 1981, in the presence of Defendant and his counsel, a date for the trial beyond the seventy-day limit was set, and the Defendant did not object. Hence, the Defendant acquiesced in the January 19 trial date. Wilburn v. State, (1982) Ind., 442 N.E.2d 1098, 1103; Little v. State, (1981) Ind., 415 N.E.2d 44, 46. Moreover, when the Defendant filed his motion for discharge on November 18, 1981, such motion was premature and properly overruled inasmuch as the trial still could have been held within the seventy (70) day time limit of Criminal Rule 4(B). Mickens v. State, (1982) Ind., 439 N.E.2d 591, 595; Banks v. State, (1980) 273 Ind. 99, 100, 402 N.E.2d 1213, 1214.

In his reply brief, Defendant urges this Court to overrule Mickens and Banks; however, we are not persuaded by his argument to do so.

ISSUE III

Ind.Code Sec. 35-5-3.1-1 (Burns 1979) [repealed effective September 1, 1982; amended and recodified at Ind.Code Sec. 35-36-3-1] provides that when the court, either from its own knowledge or upon the suggestion of any person, has reasonable grounds to believe that the defendant does not have sufficient comprehension to understand the proceedings or to make his defense it shall immediately hold a hearing to determine whether the defendant has that ability. The right to a competency hearing, however, is not absolute. Feggins v. State, (1980) 272 Ind. 585, 586, 400 N.E.2d 164, 166. Such a hearing is required by the statute and due process only when there is evidence before the trial court that creates a reasonable or bona fide doubt as to the defendant's competency. Pate v. Robinson, (1966) 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, 822; Cook v. State, (1972) 258 Ind. 667, 670, 284 N.E.2d 81, 83. The presence of indicators sufficient to require the court to hold a hearing under Ind.Code Sec. 35-5-3.1-1 must, of necessity, be determined upon the facts of each case as it arises, and the decision whether to hold a competency hearing lies in the province of the trial judge. Malo v. State, (1977) 266 Ind. 157, 160-161, 361 N.E.2d 1201, 1204. We will not disturb the decision of the trial court absent an abuse In the case at bar, following voir dire examination of the jurors, defense counsel suggested to the court that in light of the Defendant's behavior in court he was not competent to stand trial. The Defendant had had five court-appointed public defenders from the time he was arraigned on January 16, 1981 to the date of the trial on January 19, 1982. His first public defender had advised him to accept a generous plea agreement, but he refused. Subsequently, on the advice of a second public defender, Defendant pled guilty to attempted burglary. He later withdrew that plea, and his attorney moved to withdraw. The third public defender withdrew "due to a conflict of interest." The fourth withdrew because of a "conflict of personality or approach to the case." Finally a fifth public defender, on the day of trial, requested permission to withdraw, and the Defendant asked for a new court appointed attorney. The trial court denied the requests and ordered that the trial proceed. In addition, the Defendant had sent a number of letters and requests to the court which appellate counsel characterizes as "rambling." On the day of trial, when the court refused to appoint a new attorney, Defendant stated that he did not wish to be present for the proceedings, and, except for two occasions when he was brought into the courtroom for purposes of identification, Defendant was absent from the first phase of the trial. He did, however, participate in the habitual offender portion of the trial at which he interjected and made numerous objections and, while testifying in his own behalf, interrogated his attorney.

of discretion. Powell v. State, (1982) Ind., 440 N.E.2d 1114, 1120.

Defendant argues that such erratic and irrational behavior was sufficient to require the trial judge to order an examination of the Defendant to determine his competency to stand trial. The State, on the other hand, argues that there were no reasonable grounds for the trial court to believe that the Defendant was incompetent and interprets Defendant's behavior as deliberate and calculated to postpone his trial.

"The test of competence to stand trial is whether defendant has 'sufficient present ability to consult his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the proceedings against him.' " Johnson v. State, (1974) 262 Ind. 516, 520, 319 N.E.2d 126, 128; Dusky v. United States, (1960) 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825. We are not persuaded that Defendant's behavior presented sufficient indicators that he was unable to consult with his attorney with a reasonable degree of rational understanding or that he did not have a factual understanding of the proceedings against him. The trial judge was in the best position to interpret Defendant's behavior, and we find no abuse of discretion in his decision. See Green v. State, (1981) Ind., 421 N.E.2d 635, 637.

ISSUE IV

Defendant argues that he did not waive his Sixth Amendment right to be present during his trial but, rather, that he was coerced into absenting himself from the proceedings when he was forced to stand trial with an attorney he did not want to have represent him.

On the first day of the trial Defendant requested that the court appoint a new attorney and continue the cause; however, the trial court denied the request, noting that defense counsel was the fifth public defender to have been appointed and that, following numerous delays, the trial would commence with or without the cooperation of the Defendant. Defendant expressed his disagreement with the decision of the trial court and stated that he did not "care to" remain in the courtroom. Following a lengthy discussion between the trial judge and the Defendant, in which the court reiterated its plan to have the trial continue with...