Works v. State, No. 775S167

Docket NºNo. 775S167
Citation362 N.E.2d 144, 266 Ind. 250
Case DateApril 28, 1977

Page 144

362 N.E.2d 144
266 Ind. 250
Herbert L. WORKS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 775S167.
Supreme Court of Indiana.
April 28, 1977.

[266 Ind. 252]

Page 145

Joseph D. Bradley, South Bend, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

Defendant (Appellant) was charged with commission of a felony (robbery) while armed with a deadly weapon, Ind.Code § 35--12--1--1, robbery Ind.Code § 35--13--4--6 and automobile banditry, Ind.Code § 35--12--2--1. He was found guilty upon all three counts after a trial by jury and was sentenced to imprisonment for a term of not less than two or more than five years upon the automobile banditry charge and for a term of twenty years upon the armed felony charge, said sentences to run concurrently. His appeal presents the following issues:

(1) Whether the evidence was sufficient, as a matter of law, to sustain the verdicts.

(2) Whether the trial court erred in denying the defendant's pro se motion, filed immediately prior to the commencement of the trial, seeking a continuance for additional time in which to retain private counsel.

[266 Ind. 253] (3) Whether the trial court erred in denying the defendant's request that he be permitted to conduct cross-examination of two of the State's witnesses personally, rather than by his counsel.

(4) Whether certain physical evidence had been obtained in violation of the rights against unreasonable searches and seizures.

Page 146

(5) Whether the court erred in admitting certain evidence over the defendant's objection of irrelevance.

(6) Whether the court erred in admitting certain self-incriminating statements of the defendant, over his objection that they had been obtained in violation of his Fifth Amendment rights.

(7) Whether the court erred in giving the State's tendered instruction No. 8, advising that taking 'from the person,' as proscribed by the robbery statute, did not require that the article be taken from the actual physical person of another but proscribed, as well, such taking '* * * from the personal presence or personal protection of the victim.'

ISSUE I

Viewing the evidence favorable to the State and inferences reasonable drawn therefrom, it disclosed that the defendant parked an automobile in front of the liquor store and tavern premises owned and operated by Vera Danch, at the time and place alleged in the affidavit. He entered the store, purchased a bottle of wine, inquired as to the closing time and left. He returned about one-half hour later in the same vehicle, reentered the store, displayed a gun to Vera and said 'Lady this is a robbery. Give me your money out of the cash register.' Vera gave him the money, and he then instructed her to give him the money from her purse. She was unable to get it open, whereupon he took it from her, opened it and removed the currency. He next instructed her to give him the money from a second cash register, which [266 Ind. 254] she did. Thereupon, he ordered her into a lavatory, and as he barricaded the door and left, he told her that he would shoot her if she came out before he left. During such episode, to quote Vera's testimony, 'I was scared. * * * I was stunned and scared to death * * *.'

After leaving Vera in the lavatory, the defendant left the store and drove away in the automobile, which he wrecked a brief time later while attempting to elude pursuing police who had responded to an electronic alarm activated by Vera.

There can be no question but that the foregoing related circumstances and activity encompassed all of the elements of the crime charged. Apparently, the defendant does not comprehend our role in a sufficiency review, as his entire argument upon this issue is addressed only to the weight of the evidence and the credibility of the witnesses, matters which this Court will not review. Rosell v. State, (1976) Ind., 352 N.E.2d 750; Lottie v. State, (1974) 262 Ind. 124, 311 N.E.2d 800; Brown v. State, (1974) 261 Ind. 619, 308 N.E.2d 699.

When the sufficiency of the evidence is raised as an issue upon appeal, this Court will consider only that evidence of probative value most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. If such evidence and inferences would permit a reasonable trier of fact to find the existence of each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Baum v. State, (1976) Ind., 345 N.E.2d 831, and cases there cited.

ISSUE II

On the day prior to the date set for trial, the trial judge received, by mail, a request from the defendant, pro se, for a continuance to enable him to employ private counsel. The trial court treated this as a motion and held a hearing thereon on the morning of the trial date and denial the same. [266 Ind. 255] At the hearing, the defendant stated that he now had funds with which to pay a lawyer but that he had no specific lawyer in mind. He expressed no dissatisfaction with his appointed counsel, who had represented him for four and one-half months and was prepared for trial. Rather, the defendant merely expressed a desire to have counsel of his own choice.

'The services of an attorney appointed by the court may not be forced upon a pauper defendant but if the defendant refuses to be represented by the appointed

Page 147

counsel, he must find some method to employ his own counsel or proceed in propria persona.' State v. Irvin; Mogle; McAllister, (1973) 259 Ind. 610, 291 N.E.2d 70, 74, citing Schuble v. Youngblood, (1947) 225 Ind. 169, 73 N.E.2d 478.

The defendant, at his first arraignment hearing held August 29, 1974, requested the appointment of counsel but then withdrew his request and represented that he would employ his own counsel. Arraignment was continued to September 6th. On that date, the defendant appeared in person and with a certified third year law student and advised the court that private counsel would appear, the specific lawyer being named. Again, arraignment was continued--this time to September 13th. No private counsel had appeared by the 13th, and on that date, with the defendant present in person, the court appointed Anthony Luber as pauper counsel and continued the arraignment to September 19th. No objection was made.

On September 19th, the defendant appeared in person and with Mr. Luber and on arraignment entered a plea of not guilty. On October 7th, the case was set for omnibus hearing and pre-trial conference on October 29th and for a trial on January 15, 1975. On October 29th a motion for bond reduction was filed, and it was scheduled for hearing on October 30th.

Upon the foregoing record, there was no error in denying the motion for a continuance. The defendant argues that he [266 Ind. 256] had a right under State and Federal Constitutions to have an attorney of his choice if he was financially able to employ one, citing State v. Minton, (1955) 234 Ind. 578, 130 N.E.2d 226 and Powell v. Alabama, (1932) 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. We agree, in principle. However, the right can only embrace a reasonable opportunity to obtain such representation, and we find no denial of such opportunity. Trial was imminent; the defendant had had prior continuances for such purpose, and the trial date had been determined three months earlier. Appointed counsel was prepared and ready. There was no claim of any lack of opportunity, other than his incarceration and prior lack of funds, the latter obstacle having suddenly been miraculously overcome.

The granting of a continuance upon grounds other than the statutory ones (Ind. Code § 35--1--26--1) was within the sound discretion of the trial court. Trial Rule 53.4; Carlin v. State, (1970) 254 Ind. 332, 259 N.E.2d 870; Calvert v. State, (1968) 251 Ind. 119, 239 N.E.2d 697; Ward v. State, (1965) 246 Ind. 374, 205 N.E.2d 148. The exercise of such discretion may be disturbed by a reviewing court only for clear error, which has not been here shown.

ISSUE III

During the course of the State's case in chief, the defendant requested that he, personally, be permitted to cross examine two of the State's witnesses. The request was denied. In Adams v. State, (1974) 262 Ind. 220, 314 N.E.2d 53, the defendant requested permission to make the final argument to the jury. This Court quoted from United States v. Catino, (2nd cir. 1968) 403 F.2d 491:

'The right of a defendant in a criminal case to act as his own lawyer is unqualified if evoked prior to the start of the trial * * * Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply [266 Ind. 257] curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of the balance.' (Emphasis added).

The decision to allow a criminal defendant to proceed without counsel after trial has begun is also within the sound discretion of the trial court. This involves a question of fact and the defendant bears the burden of establishing the existence of prejudice to his legitimate interests. Hester v. State, (1974) 262 Ind. 284, 315 N.E.2d

Page 148

351; Turner v. State, (1972) 259 Ind. 344, 287 N.E.2d 339; Hitch v. State, (1972) 259 Ind. 1, 284 N.E.2d 783. Here the defendant failed to carry that burden. Specifically, he made no showing or claim giving rise to a reasonable expectancy that he could elicit any evidence from the witness which his attorney could not.

There is another justification for the trial judge's denial of the defendant's request. Both witnesses whom he sought to cross examine had already been cross examined by his attorney. It is the...

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66 practice notes
  • State v. Brown, No. 65
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...(Me.1994); State v. Robinson, 227 Conn. 711, 631 A.2d 288, 297 (1993); State v. Ronne, 458 N.W.2d 294, 299-300 (N.D.1990); Works v. State, 266 Ind. 250, 362 N.E.2d 144, 147 (1977); Commonwealth v. Miskel, 364 Mass. 783, 308 N.E.2d 547, 552 (1974); State v. Heaps, 87 Or.App. 489, 742 P.2d 11......
  • Russell v. State, No. 3-676A129
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1978
    ...is committed to the trial court's discretion. Bradberry v. State (1977), Ind., 364 N.E.2d 1183; Works v. State (1977), Ind., 362 N.E.2d 144. These requests tend to diverge into two categories depending upon who is to assume the dominant role. In the first, the accused essentially wishes to ......
  • State v. Craft, Nos. 14138
    • United States
    • Supreme Court of West Virginia
    • October 28, 1980
    ...a warrantless arrest for a misdemeanor of a person who does not commit such an offense in his presence." See, e. g. Works v. State, 266 Ind. 250, 362 N.E.2d 144 (1977); Commonwealth v. Hagan, 464 S.W.2d 261 (Ky.1971); State v. Cowperthwaite, 354 A.2d 173 (Me.1976); People v. Dixon, 392......
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1980
    ...of a continuance on some other non-statutory ground was clearly within the discretion of the trial court. Works v. State, (1977) Ind., 362 N.E.2d 144; Butler v. State, (1978) Ind.App., 372 N.E.2d 190. Where the denial of such motion is within the discretion of the trial court, the ruling wi......
  • Request a trial to view additional results
66 cases
  • State v. Brown, No. 65
    • United States
    • Court of Appeals of Maryland
    • September 1, 1995
    ...(Me.1994); State v. Robinson, 227 Conn. 711, 631 A.2d 288, 297 (1993); State v. Ronne, 458 N.W.2d 294, 299-300 (N.D.1990); Works v. State, 266 Ind. 250, 362 N.E.2d 144, 147 (1977); Commonwealth v. Miskel, 364 Mass. 783, 308 N.E.2d 547, 552 (1974); State v. Heaps, 87 Or.App. 489, 742 P.2d 11......
  • Russell v. State, No. 3-676A129
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1978
    ...is committed to the trial court's discretion. Bradberry v. State (1977), Ind., 364 N.E.2d 1183; Works v. State (1977), Ind., 362 N.E.2d 144. These requests tend to diverge into two categories depending upon who is to assume the dominant role. In the first, the accused essentially wishes to ......
  • State v. Craft, Nos. 14138
    • United States
    • Supreme Court of West Virginia
    • October 28, 1980
    ...make a warrantless arrest for a misdemeanor of a person who does not commit such an offense in his presence." See, e. g. Works v. State, 266 Ind. 250, 362 N.E.2d 144 (1977); Commonwealth v. Hagan, 464 S.W.2d 261 (Ky.1971); State v. Cowperthwaite, 354 A.2d 173 (Me.1976); People v. Dixon, 392......
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1980
    ...of a continuance on some other non-statutory ground was clearly within the discretion of the trial court. Works v. State, (1977) Ind., 362 N.E.2d 144; Butler v. State, (1978) Ind.App., 372 N.E.2d 190. Where the denial of such motion is within the discretion of the trial court, the ruling wi......
  • Request a trial to view additional results

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