Winker v. State

• Decision Date: 14 September 1977
• Docket Number: No. 3-676A132,3-676A132
• Citation: 367 N.E.2d 26,174 Ind.App. 258
• Parties: James WINKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 26

367 N.E.2d 26

174 Ind.App. 258

James WINKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3-676A132.

Court of Appeals of Indiana, Third District.

Sept. 14, 1977.

Hawk P. C. Kautz, Merrillville, for appellant.

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

STATON, Presiding Judge.

A jury convicted James Winker of entering to commit a felony, and he was sentenced to one to five years in prison. Winker contends on appeal that the trial court abused its discretion and committed fundamental error in:

(1) accepting the guilty pleas of Winker's co-defendants at trial after the close of the evidence;

(2) severing the co-defendants from the trial prior to closing argument, final instructions, and submission of the case to the jury; and, in

(3) allowing the co-defendants to remain in the courtroom, in the spectator area, after acceptance of their pleas and their severance.

Winker asserts that these actions prejudiced him and denied him a fair trial. We see no merit in Winker's contentions, and we affirm.

The pertinent facts are these. Winker, his wife Brenda, and Brian Sanchez were charged with first degree burglary and entering to commit a felony. Each defendant entered into plea negotiations with the prosecutor. Prior to trial, Winker and his wife filed plea agreements admitting to entering with intent to commit a felony. The trial judge rejected Winker's agreement due to his prior record. The judge indicated further that he might accept Brenda Winker's plea agreement but only after the State had presented its case. During the trial, the trial court considered Sanchez's plea agreement and rejected it.

The State presented its evidence at trial and rested. Outside the presence of the jury, all three defendants rested without presenting any evidence. Afterwards, the trial court asked Brenda Winker and Sanchez if they still wished to enter pleas of guilty to entering to commit a felony. They indicated that they did.

Before trial resumed and out of the presence of the jury the trial court instructed Brenda Winker to take a seat in the spectator area of the courtroom. When Sanchez requested to remain in the courtroom, the trial court instructed him to sit in the spectator area too.

James Winker's counsel moved for mistrial on the ground that the presence of Brenda Winker and Sanchez in the spectator area would substantially prejudice his client's case. Upon denial of the motion, Winker's counsel requested an instruction as to the severance, and the court offered him the opportunity to submit one. No instruction on the severance was ever tendered by him, and he did not subsequently object to the court's failure to give such an instruction.

Before summation by the prosecutor and by the defense, the trial court advised the jury as follows:

"By a process I will explain to you after the conclusion of the case, I have removed two of the defendants from your consideration or from the case trial. Those defendants that I have removed from your consideration are Brenda Winker and Brian Sanchez. There remains but one (1) defendant on trial at this time. As I recall, the last procedure that the jury was aware of was that the State of Indiana rested."

After the jury's verdict, the trial court explained why it had removed Brenda Winker and Sanchez from their consideration.

I. Abuse of Discretion

The gist of Winker's argument is that when the jury returned to the courtroom to hear final argument and receive the court's instructions, it saw only one of the three original defendants at the defense table. The other two defendants were seated in the spectator area of the courtroom. This new seating arrangement inferred that Brenda Winker and Sanchez were innocent and that James Winker was guilty.

Both the power to accept plea changes and the power to sever co-defendants for trial purposes are exercisable within a trial court's discretion. IC 1971, 35-4.1-1-6(a) (Burns Code Ed.), vests the trial judge with the discretionary authority to accept a change in plea. It provides:

"The court may, in its discretion, allow the defendant to withdraw his plea of not guilty for good cause shown. A motion to withdraw a plea of not guilty shall be in writing and shall state facts showing the reason why such plea should be withdrawn and in what respect the substantial rights of the defendant will be prejudiced if the motion is denied. The motion shall be verified and the state may file counter-affidavits in opposition to the motion. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. Provided, however, a motion to withdraw a plea of not guilty for the purpose of entering a plea of guilty to the offense charged or a different offense may be made orally in open court and need not state any reason therefor."

Similarly, IC 1971, 35-3.1-1-11 (Burns Code Ed.), gives the trial court discretion to join or separate co-defendants for trial purposes. Neither statute imposes time limitations within which a trial court must exercise this discretion.

When an act has been committed to the trial court's discretion, its decision in the matter will be reversed only upon a showing of manifest abuse of such discretion and denial to the complaining party of a fair trial. Muehlman v. Keilman (1971), 257 Ind. 100, 272 N.E.2d 591; Cissna v. State (1976), Ind.App., 352 N.E.2d 793. The trial court has abused its discretion only if it makes an erroneous conclusion that is clearly against logic and the natural inferences to be drawn therefrom. Merry v. State (1975), Ind.App., 335 N.E.2d 249. Of course, a showing of prejudice is a prerequisite to an abuse of discretion. Jessop v. Werner Transportation Co. (1970), 147 Ind.App. 408, 261 N.E.2d 598.

After reviewing the record, we...