Welch v. State

• Decision Date: 27 December 1990
• Docket Number: No. 05A02-8907-CR-00361,05A02-8907-CR-00361
• Citation: 564 N.E.2d 525
• Parties: Richard P. WELCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 525

564 N.E.2d 525

Richard P. WELCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 05A02-8907-CR-00361.

Court of Appeals of Indiana,

Second District.

Dec. 27, 1990.

Thomas A. Brown, Hartford City, for appellant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SHIELDS, Presiding Judge.

Richard P. Welch appeals his conviction of battery, a class C felony, ¹ and the determination he is an habitual offender.

ISSUES

1. Whether the trial court erred in denying Welch's motion for continuance.

2. Whether the trial court erred in denying Welch's motion for change of venue.

3. Whether the trial court erred in trying Welch in absentia.

4. Whether the trial court erred in permitting a witness to testify who was not included on the State's list of witnesses.

5. Whether the trial court erred in admitting into evidence various exhibits offered by the State.

6. Whether the trial court erred when it instructed the jury to return to the jury room after it reported it was unable to reach a verdict.

7. Whether the trial court erred in replacing a juror with an alternate juror after the battery verdict and before the habitual offender verdict.

8. Whether the trial court erred in refusing certain of Welch's tendered final instructions and in giving certain of the court's final instructions.

9. Whether the trial court erred in not finding any mitigating circumstances in the sentencing process.

10. Whether Welch is entitled to a new trial because his former court-appointed defense counsel, as a pro tem judge, granted a State's motion without a hearing.

FACTS

Welch attacked Capper while both men were in the Glorious Bar; Welch kicked, struck and choked Capper. After Welch was removed from the bar, he went to a friend's car parked behind the bar where he waited for Capper. When Capper appeared, Welch left the car, went to Capper, knocked him to the ground and repeatedly kicked Capper in the head and chest until Capper lost consciousness. Capper was taken to a local hospital where he received emergency treatment before being transferred to Ball Memorial Hospital in Muncie. Capper was hospitalized for two days and was not released to return to work for an additional seven days. Capper suffered numerous abrasions, a broken nose and had six to seven stitches to close a wound between his eyes.

Welch was charged with battery, a class C felony, and with being an habitual offender. A jury convicted Welch of the battery as charged and determined he was an habitual offender. Welch appeals. Additional facts appear as necessary in the discussion of the multiple issues presented for review.

DISCUSSION

I.

Welch claims the trial court erred when it denied his motion to continue the August 23, 1988 trial setting. The motion, filed on August 22, requested an additional thirty days to enable Welch "to evaluate all the discovery and interview witnesses so that [he] can make a proper defense in Court." Record at 64.

Continuances are not favored and as a general rule should be granted only when the continuance is necessary in the furtherance of justice on a showing of good cause. Clark v. State (1989), Ind., 539 N.E.2d 9. The trial court's ruling on a motion for continuance is reviewed only for an abuse of discretion and, to show an abuse, the record must reveal prejudice resulting from the trial court's ruling. Rocha v. State (1989), Ind., 542 N.E.2d 190.

The trial court did not abuse its discretion in denying Welch's request for a continuance. Welch's claim is "the need to evaluate late discovery ... is good cause where the State added new witnesses and exhibits." Appellant's Brief at 34. The trial court did not abuse its discretion in determining otherwise. Welch had had eight days between the August 15 response and his trial date. It was not unreasonable for the trial court to conclude that Welch had had ample time before trial to examine the diagrammed premises--an area to the rear of the Glorious Bar where Capper was battered. Similarly, it was not unreasonable for the trial court to conclude Welch was not surprised by the facts reported in the records of his previous convictions and pre-sentence reports. Furthermore, while Welch may not have seen the particular documents, it was not unreasonable for the trial court to conclude he could have reviewed them carefully in the days between August 15 and August 23. Finally, Welch made no effort to show why he could not have deposed the two newly added witnesses in the days between August 15 and August 23.

In addition, Welch fails to make any showing how he was prejudiced by the State's use of the tangible items disclosed in the supplemental response or by the one expert witness the State called as a witness. Inconvenience is not equated with prejudice.

The trial court properly exercised its discretion when it denied Welch's motion to continue the August 23, 1988 trial date.

II.

Welch claims the trial court erred when it denied his motion for change of venue from the county. Like a motion for continuance, the trial court's ruling on a motion for change of venue is reviewed for an abuse of discretion. Brim v. State (1984), Ind., 471 N.E.2d 672. The trial court did not abuse its discretion in denying Welch's motion.

Welch sought the motion on the basis of bias and prejudice on the part of the trial judge and pretrial publicity. However, Welch failed to comply with the provisions of Ind. Criminal Rule 12 which requires a belated motion for change of venue to set forth "when the cause was first discovered ... the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence." Failure to follow the dictates of Crim.R. 12 justified the trial court's denial of Welch's motion for change of venue from the county. Petruso v. State (1982), Ind., 441 N.E.2d 446. Also, Welch failed to offer any evidence of prejudicial pretrial publicity or any evidence in support of his claim of judicial bias or prejudice.

The trial court did not abuse its discretion when it denied Welch's motion for change of venue.

III.

Next, Welch argues the trial court erred in proceeding with the scheduled trial in Welch's absence.

Without question, a criminal defendant has the right to be present at his trial. However, a defendant may waive this right and does so when he or she fails to appear for a known trial date without notice to the court and without an explanation for the absence. Netherly v. State (1989), Ind.App., 536 N.E.2d 296, rehearing denied. With such a waiver, the defendant may be tried in absentia. Fletcher v. State (1989), Ind., 537 N.E.2d 1385.

Welch failed to notify the trial court he was unable to appear for trial or to offer any explanation for his absence. At the hearing held when Welch next appeared in court, March 6, 1989, the following exchange occurred between the trial court and Welch:

Q: Do you have any reasons why you couldn't have been here on the 23rd day of August, 1988?

A: Well, the only reason that I had was that I was scared, you know. Dean said that ... he [sic] asked me, he said, "you take five years before the Court," and he said, "You push it and take it to trial," he said, I'm going to give you up to 38, and I got scared.

Q: Alright, you understood when the trial date was? You understood when the trial date was, is that correct? You knew ...

A: I don't remember if I knew the court date or not, at the time.

Q: But you left the ...

A: Excuse me, sir.

Q: But you left the jurisdiction of the Court and left the State of Indiana, is that correct?

A: Yes, sir.

Q: In July or early August of 1988?

A: Yes sir.

Record at 833-834. Thus, Welch did not deny he knew his trial date, a reasonable position inasmuch as the record reveals Welch was told, in open court, that "the trial date has been set for the 4th week in August on the speedy trial motion [you] filed and we will be ready to go to trial on that date." Record at 346. Nevertheless, some time before that fourth week in August, Welch voluntarily absented himself from the jurisdiction. Therefore, the trial court did not err in determining Welch's absence was knowing and voluntary. Hence, there is no error in the trial court trying Welch in absentia. Fennell v. State (1986), Ind., 492 N.E.2d 297.

IV.

Welch claims the trial court erred in permitting Patricia Brown, the court reporter to testify over his objection that her name did not appear on any list of witnesses.

Welch also claims the trial court erred in admitting State's Exhibits 2 and 3, photographs of Welch which Brown identified. These photographs were later used to identify Welch as the assailant.

Although the State conceded it thought Welch "would not show up for his own trial" (Record at 357), it did not know Welch was not going to be present at his trial until he actually failed to appear on August 23. Only then was Brown's testimony necessary. Thus, the record does not establish the State's omission was the result of bad faith such as might compel exclusion of Brown's testimony.

The trial court did not err in overruling Welch's objections to Brown's testimony or his objections to State's Exhibits 2 and 3.

V.

Welch claims the trial court erred in admitting into evidence State's Exhibits 5-17, ² 18, ³ 19-22, 23, 24a, 24b and 25.

State's Exhibits 5-8 are photographs of the area behind the Glorious Bar where Capper was found injured. Welch objected to these exhibits on the grounds the photographs were taken two days after the battery and in the daytime whereas the battery occurred at night. The trial court did not err in overruling Welch's objection. The appropriate foundation for a photograph is that it is a true and accurate representation of what it purports to depict. Myers v. State (1987), Ind., 510 N.E.2d 1360. This foundation was laid; therefore the trial court properly...