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Filed: August 25, 1987.


APPEAL FROM THE MIAMI SUPERIOR COURT, The Honorable Bruce C. Embrey, Judge, Cause No. F-39-83S.

Shepard, C.j. DeBRULER, Givan, Pivarnik, and Dickson, JJ., Concur.

Author: Shepard


Appellant David Carter was convicted after a jury trial of two counts of robbery, a class A felony and a class B felony, Ind. Code § 35-42-5-1 (Burns 1979 Repl.). He was sentenced to consecutive terms of thirty-five years and fifteen years. Among the substantial issues presented by this direct appeal is whether a defendant who controlled his own defense as co-counsel may present a claim of ineffective assistance of counsel. We conclude that he cannot.

Carter was accused of robbing two businesses in Peru. The evidence at trial showed that he entered the Roberts Liquor Store on June 25, 1981, and demanded money. When the cashier hesitated, Carter struck him with a large caliber handgun and confiscated all the money in the cash drawer and in the cashier's wallet.

On July 29, 1981, Carter arrived at the Super-X Drugstore with shotgun in hand and demanded money from both the cashier and the pharmacist. They complied, and he fled. The robberies netted a total of about $1300.

Carter was charged more than two years later after one of his accomplices, Fred Logan, was arrested for an unrelated misdeed and gave police a "clean-up statement" about his own prior criminal activities. Logan's trial testimony was instrumental in obtaining Carter's convictions.

I. Ineffective Assistance of Counsel

At Carter's arraignment, a public defender was appointed to represent him. Carter filed a pro se "Notice that Defendant will Participate in his Trial" on January 13, 1984. (Carter is a self-styled jailhouse lawyer who claimed at the time to be earning approximately $600 monthly as a "law clerk" for a private attorney.) The trial court interpreted the motion as a request for defendant to act as co-counsel and initially denied it.

Nonetheless, Carter filed a motion to act as co-counsel on February 24, 1984. He withdrew that motion on March 6, after filing a pro se motion for appointment of new counsel. Carter subsequently renewed his effort to act as co-counsel through a motion filed March 26. This time, the trial court acceded to Carter's request and appointed him "co-counsel," without defining the parameters of that role. Once a defendant is recognized as co-counsel, however, the nature of his participation in his defense is within the sound discretion of the trial court. United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975); State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977); Fowler v. State, 512 P.2d 238 (Okl.Cr.App. 1973), overruled on other grounds, 602 P.2d 215 (Okl.Cr.App. 1979).

Despite his lack of legal credentials, Carter chose to participate fully. He now seeks to advance a claim that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. He cites numerous instances in which his public defender failed to make an objection or preserve alleged error. In each instance, Carter, as co-counsel, could have made the same objection or taken some action to preserve the error. Whether his reason was ignorance or strategy, Carter chose not to do so.

The record shows that counsel's representation was adequate under the standard enunciated in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that counsel's performance fell below professional standards and that the defendant was prejudiced by this performance. However, we do not otherwise address the merits of Carter's ineffectiveness of counsel claim because we conclude that he cannot raise it under these circumstances.

The Sixth Amendment of the United States Constitution and art. I, § 13 of the Indiana Constitution guarantee an accused the right to counsel at any critical stage of the prosecution where "counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1157 (1967); Pirtle v. State (1975), 263 Ind. 16, 26, 323 N.E.2d 634, 639. Correlative to the constitutional right to counsel is the right of a defendant in a criminal proceeding to appear pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant who proceeds pro se, however, must accept the burdens and hazards of self-representation. Id. ; Engle v. State (1984), Ind., 467 N.E.2d 712. He may not assert a Sixth Amendment claim of ineffective assistance of counsel because he, in effect, would be alleging himself ineffective. Faretta, 422 U.S. at 835 n. 46.

Carter chose to be represented by both his attorney and himself. Although an accused has the constitutional right to represent himself or be represented by counsel, neither the federal nor the state constitution accords him the right to do both at once. McKaskle v. Wiggins, 465 U.S. 168, 79 L.Ed.2d 122, 104 S.Ct. 944 (1984); Bradberry v. State (1977), 266 Ind. 530, 364 N.E.2d 1183. The trial court had the discretion to grant or deny Carter's request to act as co-counsel. Lock v. State (1980), 273 Ind. 315, 403 N.E.2d 1360. Inasmuch as such requests are rarely granted in Indiana,[Footnote 1] Carter's allegation of ineffective assistance of counsel under these circumstances is a novel claim.

Distinctly different policies underlie the right to counsel and the right to self-representation. The policy supporting the right of self-representation is personal autonomy. The defendant is the one who must suffer the consequences of his decision as to counsel; hence, he is entitled to choose his advocate, a lawyer or himself. Faretta. 422 U.S. at 820. The purpose of the Sixth Amendment guarantee of representation is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights and to assure him the guiding hand of counsel at every step in the proceeding. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

When an accused elects to be represented by counsel, he surrenders to his attorney the right to make certain binding decisions concerning trial strategy. The Supreme Court of Kansas explicitly held that a defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel. Ames, 222 Kan. at 100, 563 P.2d at 1044-1045. The Tenth Circuit and the Michigan Court of Appeals have similarly ruled. Rogers v. United States, 325 F.2d 485 (10th Cir. 1963); People v. LaMarr, 1 Mich. App. 389, 136 N.W.2d 708 (1965).

The United States Supreme Court has stated that a "defense may be made easier if the accused is permitted to be present . . . for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself." Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934). A similar Conclusion was reached by former Chief Justice Warren Burger, who suggested to the National Public Defender Conference in 1969 that a represented client had only three decisions to make: (1) to plead guilty or not guilty; (2) to have a jury or non-jury trial; (3) to take the stand or not. 5 Crim. Law Rptr. 2161, 2162. In Faretta, the Supreme Court stated that "when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." 422 U.S. at 820 (citations omitted). The Indiana Court of Appeals cited this language favorably when ruling that an attorney's actions on behalf of his criminal client may be binding on that client, whether or not the client affirmatively approves of these actions. Judy v. State (1984), Ind. App., 470 N.E.2d 380, 381.

This Court has held that the decision to call a particular witness rests with defense counsel. McCann v. State (1983), Ind., 446 N.E.2d 1293. In Coonan v. State (1978), 269 Ind. 578, 382 N.E.2d 157, this Court noted that among the reasons a trial court might deny a defendant's request to act as co-counsel is the need to recognize counsel's power to make binding decisions of trial strategy. In the context of a post-conviction proceeding, this Court has held that, absent fraud, a client is bound by the acts and omissions of his attorney, and he cannot accept the benefits thereof and reject undesirable acts or omissions by his attorney. See, e.g., In re Lee (1964), 246 Ind. 7, 198 N.E.2d 231.

The thrust of the precedent on this subject is that an accused may not command all decisions of trial strategy and procedure unless he intends to represent himself. In light of this concept and the unique facts at hand, we believe Carter's form of representation was most like that of a defendant who proceeds pro se but also relies on standby counsel.

Despite the public defender's representation, Carter remained the captain of his defense team, calling all of the plays with the help of his veteran teammate, the public defender. Carter obtained discovery, filed several pre-trial motions, deposed witnesses and made arguments during court hearings, as did appointed counsel. At one point, Carter possessed discovery documents in his jail cell which appointed counsel did not have. The record also shows that certain trial strategies were employed at Carter's insistence, despite counsel's advice to the contrary. The record, as a whole, suggests that Carter retained the services of the public defender primarily to conduct the investigation which Carter's incarceration prevented him from doing. Carter otherwise appeared to control his own defense.

At trial, Carter cross-examined the State's chief witnesses, including the accomplice Logan. Other witnesses were questioned by both Carter and his public defender, and evidentiary objections arose from both. While Carter showed a rudimentary knowledge of law, he proved to be relatively ineffective as his own advocate. He had been warned by the trial Judge beforehand about the hazards of participating in his own defense. The court also made clear that as "co-counsel" Carter would be held to the same standards as a practicing attorney.

While the trial court chose to describe Carter as "co-counsel," the facts show that Carter represented himself with the help of the public defender acting as a liberally defined "standby counsel."[Footnote 2] When Carter chose to take control of his own defense, under the pretext of acting as "co-counsel," he waived his right to allege a Sixth Amendment violation with respect to counsel's adequacy. By alleging his attorney ineffective, Carter, in essence, is alleging himself ineffective; he not only was actively participating in his own defense but effectively managing the activities of the public defender. This was not a situation in which the public defender listened to the advice of his client and then pursued independently the route which he believed, in his professional judgment, was most beneficial. Carter defined the public defender's responsibilities and had the final say on all trial decisions.

Accepting Carter's allegation of ineffectiveness of counsel would distort the Sixth Amendment. He has attempted to take the benefits of his constitutional right to self-representation without accepting the burdens which are inherently attached. When he chose to circumscribe "the guiding hand of counsel" and navigate his own defense, Carter voluntarily traveled into the murky waters outside the safe harbor of the Sixth Amendment and sank any claim of ineffective assistance of counsel.

Practical considerations also support this Conclusion. To allow Carter to participate in his defense to such an extent and then to assert this claim would encourage conduct contrary to the tenets of our judicial system. One of the essential reasons for counsel is the orderly pursuit of Justice, a objective which is at risk whenever an accused plays the role of courtroom advocate. Defense efforts may be repetitious or contradictory when the defendant, as co-counsel, and his appointed attorney follow different legal routes. A particularly manipulative defendant might contravene his public defender's actions simply to create appealable error. Moreover, the law will not recognize errors which could have been remedied at the trial level. As co-counsel, Carter had the duty to speak if counsel was inappropriately silent.

We note in Conclusion that our rejection of Carter's ineffectiveness claim rests upon his own substantial control of the defense. Had counsel been a true advocate within the meaning of the Sixth Amendment, rather than a tool for implementing Carter's self-representation, Carter certainly would have been entitled to present this claim.

II. Sufficiency of the Evidence

Carter alleges that the evidence was insufficient to support the jury's determination that he committed both robberies. In addressing such a claim, this Court will neither Judge the credibility of witnesses nor reweigh the evidence. We will affirm the conviction if, considering the probative evidence and reasonable inferences supporting the verdict, a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Carter claims that Logan's testimony was inherently incredible and, without it, the evidence is insufficient. It is true, as the defense brief suggests, that some conflicts arose between the testimony of Logan and other State witnesses. Appellate counsel also is correct in noting that Logan, who was 21 years old at trial, admitted committing more than 30 felonies for which he was not prosecuted. However, the conflicts in the testimony were not material, and much of Logan's testimony was corroborated by other State's witnesses. The jury was fully aware of Logan's penchant for criminal activity but nonetheless found his testimony credible. When an accomplice is otherwise competent as a witness, the amount of weight to be given the testimony is a determination for the jury, not for an appellate court. Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89, cert. denied, 396 U.S. 821, 905 S.Ct. 61, 24 L.Ed.2d 72.

Carter further argues that the victim's inconclusive identification of Carter rendered the evidence insufficient for conviction. Inasmuch as an accomplice's uncorroborated testimony was adequate to justify the jury's verdict, Griffin v. State (1986), Ind., 501 N.E.2d 1077, unequivocal identification of Carter by the victims was not required.

III. Requests for Mistrial

Carter claims error from the trial court's denial of his two motions for mistrial, both of which arose out of statements made before the jury. The denial of a motion for mistrial will be reversed only upon a showing of an abuse of discretion by the trial court. Reversal is required only if the statement was so prejudicial as to have placed the defendant in a position of grave peril to which he should not have been subjected. The declaration of a mistrial is an extreme action which is warranted only "when no other action can be expected to remedy the situation." Edwards v. State (1984), Ind., 466 N.E.2d 452, 455 (citations omitted).

Carter contends the first mistrial should have been declared during the testimony of State's witness Carolyn Shelby, whose car was used in the robbery. The Court earlier had granted a motion in limine, barring evidence of any polygraphs conducted in the case. On cross-examination by Carter, Shelby testified that she did not know that Carter had used her car in the robberies until her Discussions with the Kokomo police:

Carter: What exactly did they tell you?

Shelby: They told me that they thought David Carter had used my car in a robbery and I told them that I didn't know about it and I had to take a polygraph.

The State objected, asking that the defense be instructed to refrain from further questioning about the polygraph. While Carter chided the State for inadequately instructing its witness concerning the order in limine, he did not object to admission of the testimony nor did he seek an admonition or a mistrial. Carter now claims that Shelby's answer was so prejudicial that the court should have ordered a mistrial sua sponte.

Reference to a polygraph in most cases should not be permitted. Swan v. State (1978), 268 Ind. 317, 375 N.E.2d 198. Here, Carter arguably invited the improper reference. It generated at most minimal prejudice because the results of the polygraph were not revealed. Carter's waiver of this issue in the trial court is immaterial because a mistrial, whether on his motion or that of the court, simply was not merited.

Carter contends that a mistrial also should have been declared during Logan's testimony. Logan stated that he accompanied Carter and a man identified only as "Richie" from Kokomo to Peru on July 29, 1981. Logan and "Richie" waited in the getaway car while Carter robbed the Super-X. With money in hand, Carter ran to the car and drove to a residential area in Peru. The three men waited in the parked car for several hours to avoid police detection before proceeding on rural roads toward Kokomo. After becoming lost, they stopped at a gas station, and Carter went inside to look at a map. Two police officers drove into the station. At this point in Logan's testimony, the following exchange occurred:

Logan: They (the officers) started to go inside the store, and they gave us a real funny hard look, me and Richie when we was sitting in the car and they proceeded to go into the store and when they was going in, Davey was coming out and Davey came to the car and said told (sic) Richie, their ass is out, I mean I don't know what to say other than that. He told me that the field over there (sic) and if they ...

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