Robbins v. State, 1267S136

• Citation: 251 Ind. 313,242 N.E.2d 925
• Decision Date: 09 January 1969
• Docket Number: No. 1267S136,1267S136
• Parties: James ROBBINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 925

242 N.E.2d 925

251 Ind. 313

James ROBBINS, Appellant, v. STATE of Indiana, Appellee.

No. 1267S136.

Supreme Court of Indiana.

Jan. 9, 1969.

Frederick J. Graf, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

The only issue in the appellant's petition for rehearing that was not fully considered and discussed in the original opinion relates to the alleged denial to the accused of his right to counsel at every stage of the proceedings. Ind., 241 N.E.2d 148. When the appellant was arrested on December 29, 1966, he was taken from his home to General Hospital before being taken to the police station, in order that the victim 'could view him for identification purposes'. The appellant now contends that he was denied a right to counsel when this identification was made at the hospital by the prosecutrix. Recent decisions have indicated that an accused does have a right to counsel at an 'identification parade' or 'show up.' United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

We do not need to determine whether the Wade or Gilbert decisions would apply to the facts of this case as we feel the appellant has waived this objection. (1) In the case at bar, counsel for appellant made no objection to any testimony at the trial relating to his identification by the prosecutrix either at the trial or at the hospital. (2) The only objection made by the appellant in his motion for a new trial which even mentions the right to counsel reads as follows:

'That the court erred in permitting over defense objections the introduction of a piece of paper that stated that defendant was told of his rights to counsel and silence and which was allegedly signed by the defendant.'

This objection only relates to the introduction into evidence of a 'waiver' signed by the appellant and does not even allege that the appellant was actually denied his right to counsel. (3) In the assignment of errors presented to this court on appeal, the only objection made by appellant to the effect that he was denied his right to counsel was that he 'was not accorded assistance of legal counsel * * * during the early pre-trial custodial police interrogation'; no mention is made that appellant was denied his right to counsel when the prosecutrix identified him at the hospital. (4) Finally, even the argument in appellant's brief relating to the denial of counsel deals only with the 'early pre-trial custodial interrogation' of appellant and not with his identification at the hospital by the prosecutrix. Applying well-settled precedents, the appellant can be deemed to have waived this argument at any one of these four stages of the proceeding by not making a timely objection. White v. State (1955), 234 Ind. 193, 125 N.E.2d 442; Poehler v. State (1924), 194 Ind. 207, 142 N.E. 410; May v. State (1894), 140 Ind. 88, 39 N.E. 701; Stearn v. State (1951), 230 Ind. 17, 101 N.E.2d 67. We do not believe it a mere technicality to require the appellant to expressly and specifically raise this type of objection prior to his petition for rehearing. It would be an extraordinary requirement to compel this court or the trial court to anticipate and decide all the possible questions of law which might occur in a criminal proceeding in the absence of timely objections by the parties specifically raising the issues to be decided. We hold that the appellant in the case at...