Staley v. State

• Decision Date: 28 April 1994
• Docket Number: No. 03A01-9308-CR-279,03A01-9308-CR-279
• Citation: 633 N.E.2d 314
• Parties: Brian A. STALEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 314

633 N.E.2d 314

Brian A. STALEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 03A01-9308-CR-279.

Court of Appeals of Indiana First District.

April 28, 1994.

J. Grant Tucker, Columbus, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Brian A. Staley appeals his conviction following a trial by jury of operating a vehicle while intoxicated and resisting law enforcement, both class A misdemeanors. We affirm.

Staley makes essentially two allegations of reversible error in this appeal:

(1) that he was denied his Sixth Amendment right to be represented by counsel at all critical stages of the proceedings when he was required to participate in a striking of judges before he had counsel appointed for him and was then unable to obtain a change of venue; and

(2) that the evidence is insufficient to sustain the jury's verdict.

I.

Staley contends that his Sixth Amendment right to be represented by an attorney at all critical stages of the proceedings was violated when he was denied the opportunity to be represented by counsel during the striking of judges which occurred after the State filed charges against him but prior to his initial hearing when counsel was appointed for him. Staley was given the opportunity to strike judges but contends that he was unable to comprehend the significance of that opportunity so early in the proceedings.

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The purpose of the guarantee is to "protec[t] the unaided layman at critical confrontations" with his expert adversary, "the government, after the adverse positions of government and defendant have solidified" with respect to a particular alleged crime. McNeil v. Wisconsin (1991), 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158. Accordingly, the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. U.S. v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (citing Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411). Thereafter, a defendant is entitled to representation at any pretrial confrontation where the presence of counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right to meaningfully cross-examine the witnesses against him and to have the effective assistance of counsel at trial itself. Coleman v. Alabama (1970), 399 U.S. 1, 8, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387; U.S. v. Wade (1967), 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149.

The determination of whether a pretrial proceeding is a "critical stage" requiring the presence of counsel depends upon an analysis of whether potential substantial prejudice to the defendant's rights inheres in the particular confrontation and the ability of counsel to avoid that prejudice. Coleman, 399 U.S. at 10, 90 S.Ct. at 2003; Wade, 388 U.S. at 228, 87 S.Ct. at 1933. A "critical" post-indictment confrontation is adversarial in character, an event where the function of the lawyer is essentially the same as the lawyer's function at trial. United States v. Ash (1973), 413 U.S. 300, 312, 93 S.Ct. 2568, 2575, 37 L.Ed.2d 619. Such a critical event possesses the potential to affect the whole trial because the risk, that certain rights or defenses might be sacrificed or irretrievably lost if not then and there asserted, is present. Wade, 388 U.S. at 756, 87 S.Ct. at 1391. The right to counsel safeguards other rights deemed essential for the fair prosecution of a criminal proceeding. Maine v. Moulton (1985), 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481. Counsel's presence is a necessity if the accused is to have a fair opportunity to present his defense at the trial itself. The presence of counsel preserves the adversary process, either by counterbalancing the overreaching of the State or by compensating for the advantages enjoyed by the prosecuting authorities. Ash, 413 U.S. at 314, 93 S.Ct. at 2576.

No United States Supreme Court opinion addresses the question of whether the selection of a judge prior to any other proceedings but after the right to counsel has attached constitutes a critical stage of the proceedings. In ascertaining whether to extend the right to counsel into a new context, the court has consistently applied a historical interpretation of the guarantee, requiring the presence of counsel only when the new context presents the same dangers as gave birth initially to the right itself. Ash, 413 U.S. at 312, 93 S.Ct. at 2575. The court has also recognized that when a subsequent trial will cure a one-sided confrontation between prosecuting authorities and an uncounseled defendant, the stage is not a critical one. Id. at 316, 93 S.Ct. at 2577. ¹

The special judge selection process at issue has none of the indicia of a critical stage. It is not an adversarial or fact-finding proceeding and cannot even be said to constitute a confrontation between the defendant and the State. And, none of the defendant's other constitutional trial rights are threatened with risk of loss. A defendant who makes what might later be perceived as an unwise strike will not be deprived of the ability to test the State's case through cross-examination nor will he have been called upon to incriminate himself, and his ability to present a defense will not have been compromised if he does not make a wise choice in his selection.

Moreover, counsel's absence from the process in no way derogates from the defendant's right to a fair trial. There is little if any risk of manipulation or overreaching by the State for the membership of the panel is entirely controlled by the presiding trial judge. Indiana Criminal Rule 13 dictates that the prosecution shall strike first; hence, regardless of whether the defendant is represented in his striking, he will still have the choice between the two judges who remain. The State has not gained any unfair advantage it would not otherwise have had; indeed, it is in exactly the same position it would have been in had the defendant been represented.

Staley readily admits that he is not really seeking protection from his adversary but the benefit of counsel's judgment. The right to counsel is not a generalized protection for all purposes but a safeguard of the right to a fair trial. If a defendant, unaided by counsel, makes a choice which results in his selection of a judge who ultimately proves to be partial or biased such that he is deprived of a fair trial, protection remains for him under the cloak of the Due Process Clause. The risks associated with the unadvised selection of a special judge are plainly not so pernicious as to require an extraordinary Sixth Amendment safeguard. Given the limited function of the striking procedure, to permit a defendant the opportunity to obtain a judge with whom he is comfortable, and its nonadversarial character, we conclude that the special judge selection process envisioned by Crim.R. 13 does not present a high probability of substantial harm to a defendant should counsel not be present when the selection occurs which will not be cured by the trial itself, and hence, that the selection of a special judge is not a critical stage in the proceedings requiring the presence of counsel.

II.

Staley also challenges the sufficiency of the evidence to sustain his conviction. He maintains that the testimony of Officer Green which was used by the...