Wombles v. State

Decision Date03 January 1979
Docket NumberNo. 878S177,878S177
Citation383 N.E.2d 1037,270 Ind. 181
PartiesCodell Dennis WOMBLES, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James A. Neel, Davis, Neel & Headlee, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

A jury found Codell Dennis Wombles guilty of robbery and of criminal confinement. The trial court ordered the verdict on the criminal confinement count vacated and merged into the robbery count. The defendant now appeals and asserts four alleged errors:

1. The trial court erred in denying the defendant's motion for a continuance;

2. The court erred in allowing the prosecutor to question a witness concerning prior robbery arrests the witness had made;

3. The court erred in refusing to give the defendant's tendered instruction on intoxication; and

4. The court erred in giving the jury an improper verdict form on the criminal confinement count.

The facts most favorable to the state reveal that on October 24, 1977, Herman L. Winkler, 69 years of age, opened his residence door to two individuals. He identified the defendant as one of the individuals. Winkler was told, "We want your money . . . lay (sic) on the floor, face down." The assailants threatened Winkler with a knife and said, "You try to get up from here and you're dead." Then, the attackers put Winkler in a wardrobe and told him to stay there. Winkler told them that they could take anything he had but that he did not have any more money. To this point in the robbery, they had taken Winkler's billfold containing three twenty-dollar bills and one one-dollar bill, Winkler's ring, Winkler's watch, and Winkler's coin purse. Winkler told them that he could get them cash by cashing a check; he stated at trial that he had hoped to get somewhere where someone would know what was going on and he would be helped. Winkler was escorted by the assailants to his car and then to a gas station, a drug store, and a grocery store in an attempt to get a check cashed. At the grocery store, Winkler had reached the checkout counter with several grocery items when he saw a deputy sheriff in another checkout lane. Winkler shoved the grocery cart against the defendant's legs and shouted, "I'm being robbed, he has a knife." The deputy sheriff chased the defendant and apprehended him in the supermarket parking lot; the items taken from Winkler were found on the defendant's person.

I.

The defendant moved for a continuance just before the start of his trial. The trial court denied his motion, and the defendant states that the denial constituted error. We disagree. The bases for defendant's motion for a continuance were that he wanted a new attorney and that his grandmother was not present. The defendant had been granted several continuances prior to trial. On the morning of trial, the defendant orally informed the court that he was not ready to proceed. The court ordered the public defender to stay on the case, and the motion for continuance was overruled. The trial judge stated, "Mr. Tinder . . . is a Court appointed Public Defender, and, a very competent lawyer."

A motion for continuance based upon non-statutory grounds is left to the discretion of the court, and we perceive no abuse of that discretion here. It is not error to refuse to allow a defendant to replace his counsel during or immediately before trial. German v. State, (1978) Ind., 373 N.E.2d 880; Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811. The defendant gave no detailed explanation of why he wanted new counsel, and the court took notice of defendant's counsel's competency.

While it might be argued that the absence of a witness is a statutory ground for continuance (Ind.Code § 35-1-26-1 (Burns 1975)), the defendant's oral motion failed to show either the materiality of the evidence expected to be obtained or that due diligence had been used to obtain it; there was no showing of the probability of procuring the grandmother's testimony within a reasonable time. There was no error in overruling the defendant's motion for a continuance.

II.

The defendant next asserts that the trial court erred in allowing the prosecutor to question a law officer regarding the number of robbery arrests in which the officer had been involved. The defendant argues that the question was irrelevant and was prejudicial to him. While the question, and its answer, may have bolstered the officer's credibility as an experienced police officer, we do not believe that the question was erroneously allowed. Even if we were to assume that the question was error, it did not place the defendant in grave peril, especially in the light of the other evidence presented at trial. Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843; White v....

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14 cases
  • Parr v. State
    • United States
    • Indiana Supreme Court
    • March 9, 1987
    ...counsel during or immediately before trial because such a substitution would require the court to grant a continuance. Wombles v. State (1979) Ind. , 383 N.E.2d 1037; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 397 N.E.2d at 300. Defendant argues that he was a resident of the State of ......
  • Harris v. State
    • United States
    • Indiana Supreme Court
    • November 5, 1981
    ...immediately before trial and we do not withdraw from that position now. See, Keys v. State, (1979) Ind., 390 N.E.2d 148; Wombles v. State, (1979) Ind., 383 N.E.2d 1037; German v. State, (1978) 268 Ind. 67, 373 N.E.2d In Page v. State, (1956) 235 Ind. 628, 137 N.E.2d 405, this Court held it ......
  • Perry v. State
    • United States
    • Indiana Appellate Court
    • August 13, 1979
    ...any mechanical rule; rather, the issue is decided by the trial court's exercise of discretion, reviewable only for abuse Wombles v. State, (1979) Ind., 383 N.E.2d 1037; Phillips v. State, (1979) Ind.App., 386 N.E.2d From the record in this case it appears appellant Perry hired attorney John......
  • Blankenship v. State, 883S288
    • United States
    • Indiana Supreme Court
    • May 18, 1984
    ...of these competing interests is decided by the trial court's exercise of discretion, reviewable only for abuse. Wombles v. State, (1979) 270 Ind. 181, 383 N.E.2d 1037; Perry v. State, (1979) 181 Ind.App. 553, 393 N.E.2d 204. Among the factors to be considered are the timing of the motion an......
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