Sidener v. State

446 N.E.2d 965, 1983 Ind. LEXIS 791
CourtIndiana Supreme Court
DecidedMarch 29, 1983
Docket981S228
StatusPublished
Cited by10 cases

This text of 446 N.E.2d 965 (Sidener v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sidener v. State, 446 N.E.2d 965, 1983 Ind. LEXIS 791 (Ind. 1983).

Opinion

*966 PIVARNIK, Justice.

Defendant-Appellant David S. Sidener was found guilty by a jury in the Vander-burgh Circuit Court of two counts of armed robbery, a class B felony pursuant to Ind. Code § 35-42-5-1 (Burns 1979). He subsequently was sentenced by the trial court to two fifteen year terms to be served consecutively. Appellant now directly appeals and raises the following four issues:

1. whether the trial court erred by not sua sponte suppressing the testimony of State's witness Herzer;

2. whether the trial court erred by denying Appellant's oral motion for mistrial;

8. whether the trial court erred by refusing Appellant's oral motion for a continuance; and

4. whether the trial court improperly sentenced Appellant.

At approximately 1:18 p.m. on May 15, 1980, Ron Herzer, the owner of Belle Meade Liquors in Evansville, was robbed in his store at gunpoint of about $800.00 and a .88 caliber Smith and Wesson revolver. The robber also took a can of beer out of Her-zer's cooler and Herzer's telephone before he left, At approximately 4:25 p.m. on May 16, 1980, Carol Knollman, the owner of Carol's Beauty Salon in Evansville, was robbed in her shop at gunpoint of approximately $240.00. Both Herzer and Knollman identified Appellant as the person who robbed them. Appellant tendered to the police a statement admitting his commission of these robberies. There also was direct evidence which linked the guns used in these robberies to Appellant.

During the pleading stage of this cause, Appellant discharged his court appointed trial counsel and requested permission to proceed pro se. The record shows that the trial judge thoroughly discussed with Appellant the problems involved in proceeding without an attorney. Specifically, the trial judge advised Appellant of his risks, his rights, the procedures to be followed and his responsibilities in presenting a proper defense,. The trial court further advised Appellant that the trial judge could not and would not act as Appellant's lawyer or aid him in any way during his trial. Appellant responded that he was fully aware of his risks but was certain that he was capable of defending himself and preferred to do so. The trial court permitted him to proceed pro se. Appellant now raises several issues premised on the theory that he should have been given special consideration because he was acting pro se. It is well settled, however, that one who freely chooses to proceed pro se is not entitled to special consideration even though that person has no formal education in the intrica-cles of trial procedure. As this Court has held:

"[Hle was provided with court appointed counsel and voluntarily chose to proceed without such assistance. He cannot now be heard to complain that the lack of such assistance worked to his detriment. Smith v. State, (1977) 267 Ind. 167, 368 N.E.2d 1154."

Johnson v. State, (1979) Ind., 390 N.E.2d 1005, 1007; see also: Duncan v. State, (1980) Ind., 412 N.E2d 770, reh. denied (1981); Swinehart v. State, (1978) 268 Ind. 460, 376 N.E.2d 486.

I

After the State directly examined Herzer, Appellant questioned him - on whether he had given a written and signed statement to the police pertaining to the Belle Meade robbery. Herzer informed that he had in fact given such a statement. Appellant thereupon complained that he had not been given a copy. The prosecutor stated that he did not know that Appellant did not have a copy of Herzer's statement since he had given Appellant his entire file in open court and thought that the statement was included therein. The State then gave Appellant a copy of Herzer's statement and the trial court sua sponte called a recess to allow Appellant time to study it. When the court reconvened, Appellant cross-examined Herzer before the jury. This examination revealed that during a photo show-up conducted by the police, Herzer identified Paul Head as being the *967 person who robbed him. While on the witness stand, however, Herzer positively identified Appellant as the man who robbed him. He suggested that he did not pick Appellant's picture at the show-up because Appellant's picture portrayed him with much longer hair than he had when committing the Belle Meade robbery. The subsequent testimony of victim Knollman also suggested that Head's photograph most closely resembled Appellant's appearance at the time of the instant robberies.

Appellant made no timely objection to the trial court with respect to the manner by which he received Herger's statement. Appellant now claims that the trial court should have sua sponte suppressed all of Herzer's testimony because the State withheld said statement from him. He claims that the recess granted by the trial court was inadequate compensation for the State's failure to promptly produce the statement. We agree with the State that Appellant shows no prejudice to him in the manner by which he received Herzer's statement. The benefit of showing Her-zer's misidentification was obtained nonetheless since he was able to bring this fact to the jury's attention. Furthermore, sanctions for failure to comply with discovery orders are discretionary with the trial court and are not mandatory. Osborne v. State, (1981) Ind., 426 N.E.2d 20; Rowley v. State, (1979) Ind., 394 N.E.2d 928. Appellant's general discovery request was granted by the trial court in the form of a general discovery order directing the State to give Appellant a copy of its file and all subsequently obtained information. This was done by the State with the apparently inadvertent exception of Herzer's statement. Appellant neither made any specific request for said statement nor any general request for exhibits of its kind. There was no showing that the State intentionally withheld this information from Appellant. In fact, we may reasonably conclude that the State honestly believed that Herzer's statement was included in the file it tendered to Appellant. Richard v. State, (1978) 269 Ind. 607, 382 N.E.2d 899, cert. denied, 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781. Accordingly, we find that the trial court properly granted Appellant a recess to review Her-zer's statement and committed no error by failing to sua sponte suppress Herzer's testimony.

II

After the State rested, Appellant asked the trial court for permission to talk with any attorney. The court responded by informing Appellant that he was not entitled to counsel since he had requested and been granted permission to proceed pro se. Appellant thereupon reminded the trial court of its earlier appointment of Attorney Charles Berger as standby counsel. The trial court accordingly granted Appellant a recess to talk with Attorney Robert Simp-kins. When Appellant returned to open court, he moved for a mistrial on the grounds that one of the jurors personally knew him and that the trial court failed to provide him with standby counsel.

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Bluebook (online)
446 N.E.2d 965, 1983 Ind. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sidener-v-state-ind-1983.