Wine v. State

• Citation: 539 N.E.2d 932
• Decision Date: 15 June 1989
• Docket Number: No. 85S00-8808-CR-717,85S00-8808-CR-717
• Parties: Bobby Dean WINE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 932

539 N.E.2d 932

Bobby Dean WINE, Appellant, v. STATE of Indiana, Appellee.

No. 85S00-8808-CR-717.

Supreme Court of Indiana.

June 15, 1989.

Alan J. Zimmerman, Wabash, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Conspiracy, for which he received a sentence of eight (8) years, enhanced by twenty (20) years by reason of his status as an habitual offender, and the crime of Theft, for which he received a four (4) year sentence, the sentences to run concurrently.

Appellant's brief was prepared by court-appointed counsel. Appellant pro se filed a petition for a writ of habeas corpus in the trial court in which he challenged the legality of his agreement with the prosecuting attorney to take a polygraph test. He further claimed that the polygraph operator lied when he testified at trial that appellant failed the polygraph examination.

Appellant reasoned that since the prosecutor had agreed if he passed the polygraph test the charges against him would be dismissed and that he did in fact pass the test, he was therefore entitled to be released. He alleges the trial court erred in denying his petition for writ of habeas corpus.

The facts are: Freddie Nelson, who testified that he was a co-conspirator with appellant, stated that early one December morning in 1986 he went to the house of appellant where they discussed burglarizing a coin shop. Their agreement was that Nelson was to go inside and appellant was to maintain a watch in the alley. Appellant obtained a pair of white stretchable gloves for Nelson to wear and a pillowcase.

At appellant's suggestion, Nelson broke the window, then they retreated to appellant's house from where they could see the coin store. They waited twenty minutes to see if the police would come. When no police arrived, they returned to the shop and Nelson squeezed in between the bars. As soon as he touched the floor, an alarm went off. Again they retreated to appellant's porch and after some minutes the police arrived.

Appellant laughed at Nelson and stated that they would have had plenty of time to get some things from the shop before police arrived. During the conversation, appellant mentioned the Swifty Oil Station where Nelson's sister's boyfriend was the manager. Appellant asked Nelson if he could obtain keys to the station. They then went to Nelson's sister's home where Nelson entered. He found everyone was asleep. He thereupon went into the bedroom and obtained the keys to the station from the manager's pockets.

He then went back to appellant's apartment, obtained the pillowcases and gloves, and went to the filling station where appellant stayed to watch for the police and Nelson entered using the keys. He also used the keys to unlock a large cabinet where money was obtained which was put in the pillowcase. He also opened a floor safe with a key and took rolls of coins and loose bills. He then used a hammer to break the top plate of the safe to make it look like it had been opened by force. Nelson exited the station and gave the money he had taken to appellant. He advised appellant there was a section in the safe he could not open with the keys. Appellant obtained a tire jack and they tried but failed to open that portion of the safe.

Nelson then unlocked a door in an area where cigarettes were stored and filled a box with Marlboro cigarettes and dragged it to where appellant was maintaining a watch. Appellant then sent him back to get Winston cigarettes. Nelson returned with twelve to fifteen cartons of Winstons. They then returned to appellant's home where they divided the money and property obtained in the burglary.

Nelson then returned to his sister's home and replaced the keys in the manager's pants pocket. During his testimony, Nelson admitted he had attempted to commit suicide within the past two weeks by taking Valium and Darvocets. Following hospital treatment, Nelson was evaluated by Dr. McNab. Nelson stated that they were discussing the possibility of sending him to Logansport Hospital for a drinking problem.

Nelson's general description of the manner of entry and the damage done inside the station was verified by Allen Lee, the manager, and by Carl Rife, who opened the station on the morning of the burglary and discovered the entry. Janelle Henderson, a friend of appellant's wife, was at appellant's home late on the night of the burglary when Nelson came to the door and asked for appellant. She stated appellant left the house with Nelson. About fifteen or twenty minutes later appellant came back, asked his wife for a pillowcase, and when he obtained one, he left again. She saw him get into Nelson's car and leave. She saw them come back from across the street from a coin store and a few minutes later she heard a burglar alarm go off. She stated that after the police left, appellant and Nelson left the house and went toward the Swifty Oil Station. She stated that the next morning there were approximately fifteen cartons of cigarettes in appellant's refrigerator.

Randall Black testified that he was a polygraph operator, and appellant's physiological reactions to questions posed concerning the burglary indicated that appellant was attempting deception. This testimony was received pursuant to an agreement entered into between the prosecuting attorney and appellant.

Appellant claims the trial court erred in denying him the right to proceed pro se rather than to be represented by court-appointed counsel. The record discloses that on March 24, 1987 there was a hearing on a motion to suppress the results of the polygraph examination. During that hearing, notwithstanding representation by court-appointed counsel, appellant attempted to personally argue with the court. The court advised him that he should relay his questions to his attorney.

At that time, appellant asked to be permitted to proceed pro se. The court then advised him that he had a right to do so but stated that he would need a showing of appellant's willingness, understanding, and capacity to proceed pro se. The record shows that appellant made no further attempt to proceed pro se nor did he make any statement demonstrating his willingness, understanding, and capacity to do so.

This record discloses there was no further attempt by appellant to proceed pro se until the close of the habitual offender phase of the trial. The trial court was justified in assuming that appellant had abandoned his desire to proceed pro se at the hearing on the motion to suppress. Although it is not shown on the record, appellant claims that during the trial he made several attempts to request that he be permitted to proceed pro se but that his attorney prevented him from doing so by, among other things, slapping down his hand every time he would try to raise it to get the judge's attention.

In view of the fact that this Court has held that a request to be permitted to proceed pro se made during the trial has come too late, Broadus v. State (1986), Ind., 487 N.E.2d 1298, we cannot say that appellant's attorney acted improperly in trying to prevent appellant from making a demonstration in the presence of the jury which in all probability would have ended in failure and placed appellant in a bad light. We see nothing in this record which would support appellant's claim that he was prohibited from proceeding pro se.

Appellant contends the trial court erred when it received a communication from the jury and sent a message back to the jury without calling counsel into the courtroom. There is no question that when a trial judge communicates with the jury he should bring the parties into the courtroom so that they can be privy to the communications between the judge and the jury. Averhart v. State (1984), Ind., 470 N.E.2d 666, cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323. However we have also held that the presumption of reversible error in this type of situation is rebuttable. In reviewing this situation, we will look to the nature of the communication and the effect it might have had upon a fair determination. Marsillett v. State (1986), Ind., 495 N.E.2d 699.

In the case at bar, following the incident, the court advised the attorneys that he had in fact received a communication from the jury to the effect that they were unable to reach a decision and that his only communication to them was that he would permit them to deliberate for one more hour and then would call them into the courtroom. It was during this hour that they reac...