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04/06/88 JAMES H. KINDRED v. STATE INDIANA

Filed: April 6, 1988.

JAMES H. KINDRED, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM MORGAN SUPERIOR COURT, The Honorable Raymond L. Kern, Special Judge, Cause No. S 84 S 45.

Givan, J., Shepard, C.j., Pivarnik and Dickson, JJ., concur. DeBruler, J., concurs in result without separate opinion.

Author: Givan

GIVAN, J.

A jury trial resulted in the conviction of appellant of Conspiracy to Commit the Crime of Escape, a Class D felony, for which he was sentenced to four (4) years. He was also found to be an Habitual Offender, and his sentence was enhanced by thirty (30) years, for a total sentence of thirty-four (34) years.

The facts are: On February 17, 1984, appellant was incarcerated in the Morgan County Jail in Martinsville, Indiana, along with Nelson Wright. On several occasions in March and April of 1984, appellant contacted Tammy Baber, Wright's fiancee, and threatened to harm her and her family if she failed to help him escape. By his instructions, she left her vehicle at a local restaurant; when she returned, she found therein a bag containing eleven hacksaw blades and $75.00 in currency. After several unsuccessful attempts to slip some of the blades into the jail under a door, Baber managed on April 15, 1984, to pass them through a window.

Subsequently, appellant was transferred to the Putnam County Jail. Shortly thereafter, a Morgan County Jail inmate contacted his attorney, who relayed to Morgan County Sheriff Paul Mason information of an impending escape by appellant and Wright. Upon investigation, Sheriff Mason discovered hacksaw blades in his jail and alerted Sheriff Gary Hoffa of Putnam County, who found more hacksaw blades in his jail and among appellant's possessions. Upon appellant's transfer to the Department of Correction, more blades were found in his possession. A search of Tammy Baber's vehicle turned up more hacksaw blades as well as letters written to her from Wright and from appellant, who had apprised her of his plans to escape from both the Morgan and Putnam County Jails.

Appellant contends the trial court erred when it failed to expressly advise him of the dangers of proceeding pro se ; he claims "there exists no record to indicate an intelligent and knowing waiver of counsel in this case." We disagree. The record reveals that appellant had represented himself in numerous prior criminal cases. He also documented, within the record, his not insubstantial legal experience; in his "Motion for the Defendant to Act as Co-Counsel," appellant alleged the following:

"1.) The defendant has ten (10) years experience as a paralegal, including lay-advocate representation in over 300 adversary proceedings.

2.) The defendant spent several year's [sic] as a para-legal liaison with the State Public Defenders [sic] Office, the Legal Service Organization of Indianapolis and the American Civil Liberties Union.

3.) The defendant has five (5) year's [sic] experience in briefing to the United States District Federal Courts and Seventh Circuit Court of Federal Appeals [sic]."

Appellant cites Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 for the requirement that a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. In the case at bar, appellant had requested pauper appointment of a specific attorney, which request was granted. Appellant then filed a motion to act as co-counsel. When that motion was denied, he orally moved to proceed as his own counsel, stating "I am now invoking Furetta [sic] versus California, 95 Supreme Court, 2525 . . and my 6th Amendment Right to proceed as my own Counsel . . . ." We fail to see how appellant could personally invoke Faretta in the same breath as his request to proceed pro se without being informed of that case's cautionary holding and the import of its requirements.

Further, when asked by the trial court, "You intend to proceed per-se [sic]?" "You consider yourself capable of doing that?" "You understand that you will be held in strict accordance with all procedural details as if you were an attorney, as we proceed?" Appellant replied, "That is correct." "I do." "I do." The record clearly demonstrates the trial court made certain appellant was aware of his right to counsel and the disadvantages of self-representation.

Appellant contends the trial court erred when it refused his request for standby counsel after appellant elected to proceed pro se. However, "[t]here is no constitutional right to such hybrid representation and a trial court may, in its discretion, deny a motion requesting creation of such a scheme." Averhart v. State (1984), Ind., 470 N.E.2d 666, 689, cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323. We noted above that appellant's request to proceed pro se resulted from a denial of his request to act as co-counsel with his appointed counsel. Such request may be granted at the discretion of the trial court, but is not a constitutional right. U.S. v. Gaines (N.D.Ind. 1976), 416 F.Supp. 1047. The court has similar discretion regarding standby counsel. Id. It is clear, in light of the record as a whole, that appellant was determined to act as his own counsel. He rejected his appointed counsel, with whom he was not dissatisfied, only upon learning he could not proceed as co-counsel. Indeed, at his sentencing hearing, appellant turned down the court's offer to appoint counsel in favor of completing his motion to correct error himself. The trial court was within its discretion in denying the request for standby counsel.

Appellant contends the trial court erred when it denied his motion for continuance based upon his physical inability to proceed at trial as his own counsel. He argues that his rights to self-representation, cross-examination and a fair trial were violated because his inflamed throat and resulting laryngitis prevented him from proceeding to trial pro se. At a hearing on the motion, the trial Judge relied upon a physician's prognosis that although appellant's voice might be somewhat affected, it would not get any worse nor become a permanent affliction, nor would appellant infect others in the courtroom. The trial court ruled that appellant was not too ill to proceed and denied the motion. Denial of a motion for continuance based upon the defendant's illness will not be reversed absent an abuse of discretion resulting in prejudice to the defendant. See Smith v. State (1986), Ind., 490 N.E.2d 748. On the day this motion was heard, appellant argued pro se numerous motions at length. We see no reason to overturn the trial court's ruling that appellant was fit to proceed. Denial of the continuance based on medical inability was not error.

Appellant contends the trial court erred when it denied his motion for continuance based on the State's failure to provide timely pretrial discovery and on the Court Clerk's failure to provide service of process to appellant. He filed a motion for discovery on July 24, 1984; on October 26, 1984, the court issued a discovery order. On November 16, 1984, appellant filed a motion for production of photographic evidence and a motion to disclose impeachment evidence and testimony. At a hearing December 21, 1984, the court ordered the State to comply with the October 26 order. The State filed responses on January 7, January 14, and January 21, the day of the trial. On January 9, 1985, appellant requested fifty (50) subpoenas from the Court Clerk. Because they were sent to him unsigned and unsealed, and because the Morgan County Sheriff had told him that out-of-county subpoenas were to be served by certified mail, appellant erroneously concluded he would have to mail them back to the clerk for sealing, who would mail them back to appellant for mailing to the witnesses. As a result, appellant never sent out any subpoenas.

On the trial date, appellant moved for a continuance based on the denial of discovery and service of process. His motion, not being supported by an affidavit filed five or more days before trial, clearly failed to comply with the requirements of Ind.Code ยง 35-36-7-1 and thus its denial is a matter of the trial court's discretion. Dillon v. State (1983), Ind., 448 N.E.2d 21. To obtain a reversal, appellant must show he was prejudiced by the court's abuse of its discretion. Smith, supra. At the hearing on his motion and in his brief as well, appellant failed to show how his defense was prejudiced by the State's allegedly belated compliance with discovery orders. Rather, the record shows that had appellant made a diligent effort, he could have deposed witnesses as he was made aware of them in plenty of time to mount a defense. The trial court had ample reason to find substantial compliance with its discovery orders. Similarly, had appellant completed the subpoena forms and returned them to the clerk, or had he informed the court of ...


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