Stewart v. State

• Decision Date: 14 December 1982
• Docket Number: No. 182S34,182S34
• Parties: Duane Keith STEWART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1026

442 N.E.2d 1026

Duane Keith STEWART, Appellant, v. STATE of Indiana, Appellee.

No. 182S34.

Supreme Court of Indiana.

Dec. 14, 1982.

Merle B. Rose, Cronin & Rose, Indianapolis, for appellant.

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

GIVAN, Chief Justice.

Appellant was charged by way of a two-count indictment. Count I was for felony murder, and Count II was for attempted robbery. He was tried before a jury and found guilty on both counts. He was sentenced to sixty (60) years on Count I and thirty (30) years on Count II, both terms to be served consecutively.

On the evening of July 21, 1979, a party attended by several young people was in progress at 5020 Fall Creek Parkway in Indianapolis. The decedent, one Christopher A. Becker, was one of those in attendance. He was returning from a trip to a liquor store along with some friends when appellant and two companions, one Charles Dearman and appellant's brother Jeffery decided to rob him. Appellant and his companions had a .22 caliber pistol and a .22 caliber rifle in the car with them.

Dearman got out of the car armed with the pistol while appellant took the rifle. They approached the decedent who was still sitting in his truck. They demanded money from him. He belligerently refused their demand, and the pair began to walk back to their car. The decedent got out of his truck and began following them, yelling at them. Dearman, who testified as part of a plea bargain agreement, said that as he was walking back to the car he heard two or three shots. He testified he turned and saw the decedent clutching his stomach and appellant holding the rifle pointed at the decedent. Medical testimony established a gunshot wound to the left side of the chest was the cause of death. Jeffery Stewart also testified that upon their return to the car, his brother stated he had shot the decedent.

Appellant claims the verdict was unsupported by sufficient evidence and was contrary to law. He argues the testimony of Charles Dearman demonstrates he made conflicting statements and told several falsehoods in making pre-trial statements. Because of these deficiencies in Dearman's testimony appellant argues the evidence is insufficient for the jury to have concluded it was he and not Dearman who fired the fatal shot.

We do not reweigh the evidence nor judge the credibility of witnesses. Williams v. State, (1980) Ind., 406 N.E.2d 241.

In the case at bar the inescapable fact is witness Dearman affirmatively stated that as he and appellant were returning to their car and the decedent was yelling at them he heard shots and turned around to see the decedent clutching his stomach and appellant pointing the rifle at him. It was certainly reasonable to infer from that and other evidence it was appellant who fired the shots and murdered the decedent. The uncorroborated testimony of an accomplice is sufficient to support a conviction. Walker v. State, (1980) Ind., 409 N.E.2d 626. We hold there is sufficient evidence to support the conviction.

Appellant claims the trial court erred in denying his pro se motion to dismiss his retained attorney, made immediately prior to voir dire of the jury. At that time appellant made known to the trial judge his dissatisfaction with the attorney because he failed to subpoena a certain witness. The attorney admitted being informed of the witness' name and telephone number. However, he stated, and appellant confirmed, he was not provided with the witness' address. Appellant also claimed the attorney withheld information on discovery processes from him. Finally, appellant expressed general dissatisfaction with the attorney because he "wasn't very interested" in his case.

On appeal appellant treats this issue as one relating to the Sixth Amendment right to the effective assistance of counsel. He argues the attorney's failure to subpoena the witness and failure to inform him of the progress of the case generally constitute ineffective representation as measured by the standards elucidated in Duncan v. State, (1980) Ind., 412 N.E.2d 770 and Harris v. State, (1981) Ind.App., 416 N.E.2d 902.

We have held failure to grant an untimely request to change counsel is not error absent a showing the defendant was prejudiced by anything the attorney did or did not do. Vacendak v. State, (1982) Ind., 431 N.E.2d 100. Moreover, the defendant may not disrupt the sound administration of the criminal justice system by deliberate discharge of counsel. Vacendak, supra; Duncan, supra.

Appellant was not prejudiced in this case by the failure to allow him to discharge the attorney. The record shows the attorney filed a number of pre-trial motions in appellant's behalf. We also find the attorney cross-examined the State's witnesses effectively, and particularly that he conducted what can be characterized as a scathing cross-examination of Charles Dearman. Finally, during preliminary questioning of appellant when he took the stand in his own defense he admitted after talking to the attorney he agreed he "felt a little better about things" and agreed the testimony of the missing witness would not have been very helpful to him. He also admitted he knew his attorney made an effort to find this witness prior to trial.

The record thus belies any notion the attorney was unprepared for trial or that appellant's trial was a "mockery of justice" due to the attorney's ineffectiveness. Appellant was not prejudiced by the denial of his motion to replace his attorney. See, Vacendak, supra.

In a related claim appellant argues the trial court erred in overruling his attorney's repeated motions to withdraw from the case. These motions were made during voir dire of the jury after appellant had made known to the court his dissatisfaction with the attorney.

The principles we identified above with regard to appellant's own motions to have the attorney discharged apply to the allegation the trial court erred in not permitting the attorney to withdraw from the case on his own motion. See, Vacendak, supra. The record belies any notion the failure to grant the motion in any way prejudiced appellant. There was not error in denying the attorney's motion to withdraw from the case.

Appellant claims the trial court erred in denying his trial attorney's motion to withdraw from the case made at the sentencing hearing. At that time the attorney stated he felt because of appellant's earlier indications of his dissatisfaction with his representation, it would be advisable to have a different attorney draft and file the motion to correct errors in the case. The trial court denied the attorney's motion to withdraw and required him to file the motion to correct error. However, the trial judge indicated she would permit the appointed appellate counsel to file a belated motion to correct error and therein raise any error appellant felt should have been raised and was not by the trial attorney.

The record reflects the trial attorney filed a Belated Motion to Correct Error on November 10, 1981, which was overruled the same day. In that motion the trial attorney alleged error with regard to all of the above issues.

Appellant was in no way prejudiced by the trial court's ruling. The trial attorney properly preserved all possible allegations of error with regard to his representation of appellant in the face of the desire appellant manifested at one point in the proceeding to have a different attorney represent him. Only when the error has caused prejudice to the defendant is there cause to reverse the conviction. Smith v. State, (1982) Ind., 432 N.E.2d 1363; Phillips v. State, (1967) 248 Ind. 150, 222 N.E.2d 821. There being no prejudice shown here, there was no reversible error in requiring the trial attorney to file the motion to correct error.

Appellant claims the trial court erred in allowing witness Tom Williams to testify. Williams was in the back of decedent's truck when the events in question occurred. He had accompanied decedent on his trip to the liquor store made immediately prior to his being accosted by appellant and Charles Dearman. The record reflects the jury was excused from the courtroom when Williams began to testify and a hearing was held on his competency as a witness. During the hearing Williams admitted he had been drinking malt liquor or beer since 8:00 p.m. that evening. He admitted he was intoxicated when the events in question took place and about which he testified.

Appellant argues the trial court abused its discretion in determining Williams to be a competent witness.

We disagree. In Ware v. State, (1978) 268 Ind. 563, 565, 376 N.E.2d 1150, 1151, we stated: "The test of competency is whether the witness has sufficient mental capacity to perceive, to remember and to narrate the incident he has observed and to understand the nature and obligation of an oath." We also see upon examining a number of general authorities the fact a witness was intoxicated at the time the events occurred about which he testifies relates not at all to his competency but rather to his credibility as a witness. See generally, 97 C.J.S. Witnesses Sec. 59 (1957); 3 S. Gard, Jones on Evidence Sec. 20:14 (6th ed. 1972); 2 C. Torcia, Wharton's Criminal Evidence Sec. 375 (13th ed. 1972); see also, Ware, supra; Kimble v. State, (1974) 262 Ind. 522, 319 N.E.2d 140. Moreover, the determination of the competency of a witness is a matter committed to the sound discretion of the trial court. A determination of the competency of a witness is reviewable only when a manifest abuse of the discretion of the trial court has occurred. Ware, supra; Grecco v. State, (1960) 240 Ind. 584, 166 N.E.2d 180.

The record reflects though the witness admitted his intoxication he also stated he was "definitely" able to relate what words were exchanged between the decedent and appellant and his companion. He also testified he "sobered up" upon hearing the shots and was...