Katherine A. Cornelius
Marion County Public Defender's Office
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
K. C. Norwalk
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
December 27, 1999
Defendant Spencer Dobbins appeals his conviction for murder on several grounds: that the trial court improperly refused his request to represent himself and incorrectly
instructed the jury; his lawyer improperly failed to request a speedy trial; the prosecutor
made improper remarks during closing argument; and there was insufficient evidence of
guilt. Finding no trial court error, ineffective assistance of counsel or prosecutorial misconduct, and finding the evidence sufficient to support the conviction, we affirm.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds fifty years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
After hearing two gunshots, Kelly Smith ran to Mr. Welch's front door and discovered Mr. White laying on the ground under a streetlight. Armed with a handgun, Defendant
walked away from White and toward Kelly Smith. Are you ready to tell on me?, he
asked. (R. at 407.) She responded negatively and ran to a friend's house.
Additional facts will be provided as needed.
On November 19, 1996, the trial court appointed Eric Koselke as Defendant's counsel. The record reveals that Mr. Koselke was Defendant's sole public defender until February 12, 1997, when Robert Hill filed an appearance as co-counsel. At a motion in limine hearing on March 18, 1997, Mr. Hill appeared as Defendant's sole counsel. During
this time, Defendant did not object to the presence of counsel nor did he request to proceed
At a hearing on another issue held April 8, 1997, the trial court addressed Defendant's Pro Se Motion to Dismiss in which Defendant contended, among other claims, that
Mr. Koselke's representation was ineffective.See footnote
The trial court ruled that Defendant's
ineffective assistance of counsel claim was moot because Mr. Koselke had been replaced by
Mr. Hill. Mr. Hill moved for a continuance because he was unprepared due to the departure
of Mr. Koselke. The trial court granted the continuance.See footnote
Again, Defendant did not request
to proceed pro se at this time.
At an October 1, 1997, pre-trial conference, Defendant argued that the trial court
failed to rule on his motion for a speedy trial, an assertion he contends was contained in
Defendant's Pro Se Motion to Dismiss. (R. at 77-80.) Although the trial court did not find
a motion for a speedy trial, it addressed Defendant's pro se motion.
COURT: I don't see any motion where anyone has moved for a speedy trial.
DEFENDANT: You denied the one for a _ the motion for a _ the one you denied, you accepted that one, but you denied the other one. I had two motions that _ I said I was _ the
reason why I filed this, because I was getting rid of an
attorney because I wanted a fast and speedy trial, and I
have been in here a year, messing around, you know. I
put it on specifically what I wanted it for.
COURT: All right. Part 2 [of Defendant's pro se motion to dismiss] has already been denied, which is a lack of evidence to support probable cause, and I'll stand by that. Part 1 is Defendant's pro se motion to dismiss in which he asserts that trial counsel has been defective in that he has failed to pursue and secure a spee dy trial by jury. Well, can you afford to hire your own lawyer?
DEFENDANT: No, I can't afford to hire my own lawyer.
MR. HILL: Mr. Koselke was on the case. Mr. Koselke and [Defendant] had disagreements _
COURT: _ I can't understand that _
DEFENDANT: _ he had too many cases. His caseload was over Trial Rule 24. I had to get rid of him myself, you know. He couldn't _
COURT: _ well, I don't know that you're rid of him.
DEFENDANT: He couldn't protect me. He didn't act like he wanted to, you know.
(R. at 193-94.) Also, at this pre-trial conference, Defendant submitted two additional pro se motions: a Motion for Copy of Court Chronology and what appears to be another motion to dismiss.See footnote 5 (R. at 84-85; 197-98.) The trial court denied the motion to dismiss, but granted Defendant a copy of the court chronology. The trial court then instructed Defendant to direct any future motions to his attorney, Mr. Hill, for proper filing. Defendant did not object.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to the assistance of counsel. Implicit in this amendment is a defendant's right to self- representation _ that is, to proceed propria persona. Faretta v. California., 422 U.S. 806, 819 (1975); Sherwood v. State, 717 N.E.2d 131, 134 (Ind. 1999). The decision to proceed
pro se must be made knowingly and intelligently because, by asserting this right, the
defendant simultaneously waives his or her right to the assistance of counsel. See Faretta,
422 U.S. at 807; Sherwood, 717 N.E.2d at 134. However, a defendant must first clearly and
unequivocally assert his right of self-representation before claiming that such a right has
been denied. See Broadus v. State, 487 N.E.2d 1298, 1304 (Ind. 1986); Russell, 270 Ind. 55,
61, 383 N.E.2d 309, 313 (1978); Anderson v. State, 267 Ind. 289, 294, 370 N.E.2d 318, 320
(1977). We explained in Anderson, that
[the request] must be 'sufficiently clear that if it is granted, the defendant should not be able to turn about and urge that he was improperly denied counsel.' Meeks [v. Craven, 482 F.2d 465, 467-68 (9th Cir. 1973)]. If the rule were otherwise, trial courts would be in a position to be manipulated by defendants 'clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.' Id.
Anderson, 267 Ind. at 294, 370 N.E.2d at 320-21.
could not, Defendant contends that the trial court should have ruled on the motion [to
proceed pro se] or held a hearing on the issue. Appellant's Br. at 12. We, however, do not
find that a pro se request was properly before the trial court.
First, Defendant's argument implies that the trial court failed to advise him of his
right to self-representation. However, a trial court is under no obligation to advise a
defendant of the right to self-representation. Russell, 270 Ind. at 60, 383 N.E.2d at 313
([T]here is no requirement that a Defendant be advised of the right of self-representation
at any stage, under any circumstances, and that such advisements cannot even be characterized as a preferred procedure.). Nor is knowing, voluntary and intelligent waiver of the
right of self-representation constitutionally mandated. Id.
Second, Defendant failed to assert clearly his right of self-representation at this hearing. Generally, a trial court should conduct a pre-trial hearing to determine a defendant's competency to proceed without counsel and to establish a record of a defendant's waiver of his right to counsel. See Russell, 270 Ind. at 64, 383 N.E.2d at 315. However, as a prerequisite to such an inquiry, a defendant must first make a clear and unequivocal
request to proceed without counsel. Id. We decline to find that Defendant's response to the
question posed by the trial court constitutes a clear assertion of his right to self-representation. That is, Defendant's declaration that he could not afford an attorney, when already
represented by a court-appointed attorney, does not constitute a clear assertion of his right
proceed pro se does not constitute a clear assertion of a right. The trial court recognized
Defendant's emotional response as a request to expedite commencement of his trial. The
trial court complied with this request by limiting the continuance to seventeen days.
We further note that Defendant submitted pro se motions while represented by counsel. In none of these motions did Defendant specifically request to proceed pro se. He consistently accepted the assistance of his court-appointed counsel, Mr. Hill, even after what he now contends was a request to proceed pro se.
Because Defendant failed to assert his right to self-representation in a clear and
unequivocal manner, Defendant was not improperly or unconstitutionally denied his right
Defendant relies on Broome to contend that an attorney may be ineffective when he or she fails to file a motion for a speedy trial on behalf of the client. Broome, 694 N.E.2d at 281. Specifically, we explained that [t]here may exist circumstances in which defense counsel's refusal or neglect to file a speedy trial motion specifically requested by a defen
dant could constitute deficient performance to support a claim of ineffective assistance of
counsel. Broome, 694 N.E.2d at 281 (emphasis added). Such circumstances did not exist
in Broome. Defendant Broome attempted to request a speedy trial during a pre-trial conference. Defense counsel opposed the request explaining that he could not properly prepare for
the trial within the prescribed seventy days pursuant to Crim. R. 4(B). Id. We held that
[w]hen counsel's action or inaction is premised upon matters relating to trial preparation,
such decisions are matters of trial strategy and the power to make binding decisions of trial
strategy is generally allocated to defense counsel. Id. (citing Bradberry v. State, 266 Ind.
530, 536-37, 364 N.E.2d 1183, 1187 (1977). Consequently, we found that defense counsel
rendered effective assistance.
Here, as in Broome, Mr. Hill explained to the trial court that he was unprepared to
proceed to trial as scheduled due to the number of murder trials and the pending death
penalty trial that had demanded his attention for the past two months. Mr. Hill's action was
premised on matters of trial preparation which is considered a matter of trial strategy
generally relegated to defense counsel. See id. Defendant has failed to present convincing
evidence to overcome the presumption that Mr. Hill rendered adequate assistance.
When evaluating a prosecutorial misconduct claim, we must first determine whether
the prosecutor engaged in misconduct and then determine whether the misconduct placed
the defendant in a position of grave peril so as to have a probable persuasive effect on the
jury's decision. See Robinson v. State, 693 N.E.2d 548, 551 (Ind. 1998); Willoughby v.
State, 660 N.E.2d 570, 582 (Ind. 1996); Zenthofer v. State, 613 N.E.2d 31, 34 (Ind. 1993).
It is, however, improper for a prosecutor to suggest that a defendant shoulders the
burden of proof in a criminal case. See Wright, 690 N.E.2d at 1112; Chubb v. State, 640
N.E.2d 44, 48 (Ind. 1994). Even though the prosecutor's comments may have suggested
that Defendant shouldered this burden of proof, the trial court admonished the jury, instructing it that the prosecutor's comments served only as argument and that it would later receive
instruction on the proper burden of proof to apply in this case.See footnote
Further, the trial court
informed the jury that the State bore the burden of proving Defendant's guilt beyond a
reasonable doubt in both its preliminary and final instructions. The trial court further
explained to the jury that Defendant is not required to present any evidence or prove his
innocence. It is the State's burden to prove his guilt . . . . (R. at 101.)
The Due Process Clause of the Fourteenth Amendment protects an accused 'against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' Winegeart v. State, 665 N.E.2d 893, 896 (Ind. 1996) (quoting In re Winship, 397 U.S. 358, 364 (1970)). The standard serves to impress upon the fact-finder the need to reach a subjective state of near certitude of the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 315 (1979). Because a defendant's liberty is at stake, the prosecution bears this substantial burden of proof. Winegeart, 665 N.E.2d at 896 (citing Speiser v. Randall, 357 U.S. 513, 525-26 (1958)).
As to Defendant's constitutional challenge to the reasonable doubt instruction, we
find that there is not a reasonable likelihood that the jurors applied the instruction in a
manner that violated Defendant's rights under the Due Process Clause of the Fourteenth
Amendment. As such, the trial court did not read an improper reasonable doubt instruction
to the jury.
When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of the witnesses; rather, we consider only the evidence favorable to the jury's verdict and draw all reasonable inferences therefrom. Thornton v. State, 712 N.E.2d 960, 961 (Ind. 1999); Hurst v. State, 699 N.E.2d 651, 654 (Ind. 1998); Roach v. State, 695 N.E.2d 934, 941 (Ind. 1998). We will affirm a conviction if the probative
evidence and reasonable inferences drawn from the evidence could have led the jury to find
a defendant guilty beyond a reasonable doubt. See id.
Defendant contends that certain State witnesses' testimony was incredible because
the witnesses were intoxicated at the time of the incident, and that at least two of the
witnesses discussed the case with each other and had provided the police with inconsistent
stories. Appellant's Br. at 21-23. First, any inconsistencies go to the weight of the evidence
and credibility of a witness' testimony. See Jordan v. State, 656 N.E.2d 816, 818 (Ind.
1995) (citing Webster v. State, 513 N.E.2d 173, 175 (Ind. 1987)). It is within the province
of the trier of fact to determine facts from evidence presented to it and then to judge the
credibility of those facts. Kingery v. State, 659 N.E.2d 490, 493 (Ind. 1995). Further, we
have consistently held that the uncorroborated testimony of a single witness is sufficient to
sustain a murder conviction. Hobbs v. State, 548 N.E.2d 164, 168 (Ind. 1990); Moffatt v.
State, 542 N.E.2d 971, 975 (Ind. 1989).
The facts most favorable to the verdict reveal that two witnesses observed Defendant chase and then shoot the victim. A third witness, Kelly Smith, observed the victim laying on the ground while Defendant, carrying a handgun, walked away from the victim. All of this took place with ample lighting supplied by a nearby streetlight. Additionally, Defendant approached Kelly Smith and asked her if she planned to report what she saw. The State provided sufficient evidence to support Defendant's conviction.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Another was to proceed pro se. Jackson v. State, 483 N.E.2d 1374, 1377 (Ind. 1985). We find that the Defendant intended neither. Defendant stated that he could not afford to hire his own attorney; Defendant did not specifically request to proceed pro se; and Defendant's objection to Mr. Koselke was that he was ineffective _ he did not object to Mr. Hill's assistance. As such, the trial court properly concluded that Defendant accepted substitute court-appointed counsel without having to call for a hearing on the matter of self-representation.
within seventy (70) calendar days from the date of such motion,
except where a continuance within said period is had on his motion,
or the delay is otherwise caused by his act, or where there was not
sufficient time to try him during such seventy (70) calendar days
because of the congestion of the court calendar.
Ind. Crim. R. 4(B).