Smith v. State

• Decision Date: 10 July 1975
• Docket Number: No. 2--674A134,2--674A134
• Parties: Robert Ree SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 384

330 N.E.2d 384

165 Ind.App. 37

Robert Ree SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--674A134.

Court of Appeals of Indiana, Third District.

July 10, 1975.

Rehearing Denied Aug. 21, 1975.

Jerry W. Newman, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Robert Ree Smith (Smith) was convicted by a jury of the crime of assault and battery with intent to kill. ¹ He appeals following the overruling of his motion to correct errors by the trial court.

Appellant Smith first asserts on appeal that the trial court erred in refusing to grant a motion for discharge made by him under the provisions of Ind. Rules of Procedure, Criminal Rule 4(A). Such rule provides that a criminal defendant may not be incarcerated on a charge, without a trial, for a period exceeding six months where there has been no delay on his part. State ex rel. Dull v. Circuit Court of Delware Cty. (1973), Ind., 301 N.E.2d 519.

In the case at bar, it is undisputed that appellant was incarcerated longer than this period. However, appellant appeared in the trial court and waived arraignment on a date within the 6-month period, and at such time his trial was set at a date beyond such 6-month period. Because Smith voiced no objection to the setting of his trial beyond such period, the denial of his motion for discharge by the trial court must be affirmed. Bryant v. State (1973), Ind., 301 N.E.2d 179.

The next issue which must be considered herein is whether the trial court erred in refusing a continuance requested by appellant moments before his jury trial was to commence. The reason given for such request was that appellant wished to employ an additional attorney to assist in the presentation of his defense at trial. Where, as in the case at bar, a motion for continuance is not based upon certain statutory grounds, ² the ruling on such motion is within the sound discretion of the trial court. King v. State (1973), Ind., 296 N.E.2d 113, 115; Johnson v. State (1970), 254 Ind. 465, 467, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870; Reed v. State (1973), Ind.App., 300 N.E.2d 108 (transfer denied); Trinkle v. State (1972), Ind.App., 288 N.E.2d 165 (transfer denied).

Such ruling must be upheld in the absence of a demonstration of a clear abuse of discretion. Generally, requests for continuance are not favored and will only be granted in furtherance of justice upon a showing of good cause. Johnson v. State, supra; Stock v. State (1974), Ind.App., 319 N.E.2d 871, 873; Dockery v. State (1974), Ind.App., 317 N.E.2d 453, 458; Hopper v. State (1974), Ind.App., 314 N.E.2d 98, 103.

In cases such as these, account must be taken not only of the wishes of the defendant, but also of the public interest in the prompt disposition of these matters. See: ABA Standards, Speedy Trial, § 1.3, at 5 (Approved Draft, 1968).

Appellant contends that the trial court's refusal to grant his request for a continuance compelled him to submit to trial without a counsel of his choice.

However, upon the facts presented, the refusal of a continuance and concomitant rejection of a request for additional counsel was within the sound discretion of the trial court and did not amount to an abuse thereof. In United States v. Cozzi (7th Cir., 1965), 354 F.2d 637, at 639, the court stated that,

'An accused's Sixth Amendment right to select his own counsel does not permit of arbitrary action which obstructs orderly procedure in the courts. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936. It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make a new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence. * * *.'

The appellant in making his request for continuance did not express dissatisfaction with the counsel who had represented him for many months prior to trial. The additional counsel purportedly retained by appellant entered no appearance in the cause and there is no indication in the record that the trial court was otherwise contacted by him prior to trial. An examination of the entire record discloses that appellant was ably represented by his counsel during trial. Under these circumstances, the expeditious administration of justice outweighed appellant's desire for the last minute addition of another attorney. Cf. United States v. Hampton (7th Cir., 1972), 457 F.2d 299. Appellant also contends that the trial court erred in denying a second request for a continuance for the reason that such continuance was necessary to adequately prepare his defense. This second continuance was requested after the trial court herein had granted a continuance from a Friday to a Tuesday to allow appellant's counsel to meet with him and his family because additional facts had come to light. In requesting the additional continuance, appellant's trial counsel alleged the same grounds. The trial judge then overruled the motion for continuance noting that this cause had been pending over a year and that appellant's counsel had already been granted sufficient time to become prepared.

The request for continuance now at issue was also not made upon statutory grounds. Therefore, as established by the cases cited hereinabove, the granting of such request rested within the sound discretion of the trial court.

The record of this cause discloses that the trial of this matter was postponed four times from December 21, 1972, until May 29, 1973. Appellant's request made only a vague allegation of a lack of preparation at a time when this charge had been pending over a year, and after he had already obtained a continuance for the same reason. In these circumstances, the denial of a continuance by the trial court was not an abuse of its discretion. Cf. State v. Irvin; Mogle; McAllister (1973), 259 Ind. 610, 291 N.E.2d 70; Dockery v. State, supra.

The next issue to be considered is whether the trial court erred in admitting certain photographs in evidence. In each instance, appellant Smith objected to the photographs as irrelevant. In the recent case of Patterson v. State (1975), Ind., 324 N.E.2d 482, at 486, our Supreme Court stated:

'The relevancy of photographic evidence may be determined by an inquiry as to whether a witness would permitted to describe verbally the objects photographed.' (Citations omitted)

One of the photographs to which appellant objects depicted the victim as she appeared prior to the assault and battery. The apparent purpose for which this photograph was admitted was to demonstrate to the jury the shocking change in the appearance of the victim which the battery by appellant had occasioned.

The statute under which appellant was charged, IC 1971, 35--13--2--1, Ind.Ann.Stat. 10--401a, (Burns Supp.1974), requires as an element of the offense 'intent to kill another human being * * *.' It has been held that evidence of the length of time a victim was hospitalized due to a battery was admissible in a prosecution under this statute as proof of such intent. See: Arnett v. State (1969), 251 Ind. 685, 244 N.E.2d 912. Because the photograph in the case at bar likewise tended to establish the extent of the injures inflicted upon the victim, such information was equally relevant and properly admissible.

The remaining photographs to which appellant objects depicted the scene of the crime as it appeared immediately following the crime. The relevancy of such photographs is apparent. The witnesses described the physical surroundings where the crime occurred. Such testimony was competent, relevant and admitted without objection. The trial court did not abuse its discretion in admitting such photograpphs. Patterson v. State, supra; New v. State (1970), 254 Ind. 307, 259 N.E.2d 696; Kiefer v. State (1...