*1
GIVAN,
J.,
being held.
C.
and DeBRULER and
section where he was
security
JJ.,
PRENTICE,
to see how these facts tend to
concur.
We fail
appellant’s theory that he was in-
support
J.,
HUNTER,
opin-
in result with
concurs
kidnapping
duced or lured into
the warden
ion.
family. As
was no evidence
and his
there
support
entrap-
at trial to
presented
Justice, concurring
HUNTER,
in result.
theory,
correctly refus-
ment
I
I
because dissent
concur in result
Hash v.
appellant’s
ed
instruction.
State
self-represen-
reasoning regarding
from the
(1972),
258 Ind.
right self-representation unnecessary is IV. clear herein in the evidence was that that the law access to was allowed defendant challenges the suffi- Finally, appellant that he was assisted in the trial library, and jury’s ciency supporting of the evidence Furthermore, the by attorney. defense an kidnapped the warden that he conclusions prejudice. no Fi- defendant demonstrated when he it. In and that he was sane did nally, contrary implication within the contention, regard to his first majority opinion, all of the ramifications of claims that the evidence adduced at trial self-representation right the Faretta of- being showed the warden was “held as that It have not been clarified this Court. hostage not carried that requests has been held that even for essen- away.” We think the evidence set out at tially be toler- “hybrid” representation beginning opinion adequately of this choice does long ated as the court supported kidnap- appellant’s conviction procedure not orderly subvert the ping. Ind., 373 courts. German v. sufficiency of reviewing continuance of the denial sanity, we the evidence on the issue of treat discretion. was within court’s Ger- the trial questions of fact. This the issue like other State, supra. man v. judge credibility does of wit Court evidence, but rather reweigh nesses nor favorable to the
looks to the evidence most along any reasonable inferences
State is
therefrom. If there substantial probative support jury’s value was sane at
conclusion that the defendant crime, of the
the time of the commission not be overturned. that conclusion will ADAMS, Appellant, Kenneth Earl (1977),Ind., 368 N.E.2d Sypniewski v. State court present 1363. In the Indiana, Appellee. testified psychiatrists STATE of opinion appellant their was able to conform No. 1077S755. requirements his conduct to the law Supreme Court Indiana. kidnapping. at the time of the testimony indicated that own thought well out escape plan had been as to the calculation advance with careful find this evidence odds for success. We jury’s conclusion support
sufficient to kidnapped sane when he
the warden. court af- judgment of the trial
firmed. *2 where her purse
then asked her was. When downstairs, purse was informed that her son down to the victim and the man led threatening to kill room while carrying. with knife he said he was them *3 downstairs, E.J. the man directed to again threatened to kill get her wallet and gave man her wallet boy. the then the She which contained over $80. wallet, taking victim’s the man
After the and instructed ordered the victim to disrobe boy to He rocking the sit in chair. then a pushed where he onto a couch the victim rape. man sodomy and committed oral upstairs and and her son back then led E.J. until escape. The victim waited made his depart, removed her she heard the man police. the blindfold and called issues for our presents four Appellant (1) the trial concerning: whether review competency a hear- in not hold court erred incrimina- (2) admission certain ing; the by appellant to the ting made statements victim; the propriety of the Ittenbach, Indianapolis, for John F. and; (4) appellant’s denial of imposed, the pellant. petition to a belated amended motion to file Gen., Sendak, Atty. Rollin E. Theo. L. correct errors. Gen., Indianapolis, Thompson, Atty. Asst. appellee. for I. suggestion a to PIVARNIK, Prior filed Justice. judge The trial of insanity with court. the Following a in the Marion jury trial appel- examine physicians two to 29,1977, appellant
Criminal Court on a One of these doctors submitted lant. degree of first bur- Adams was convicted indicating that to court report written rape and arm- robbery, armed glary, armed com- appellant had sufficient opinion in his terms of im- Adams received sodomy. ed nature prehension to understand twenty twenty years, prisonment ten to in his defense. and to assist proceedings years ten re- years, twenty-four years and by the to be examined Appellant refused The last spectively for the four offenses. third appointed a second so the court doctor consecutively. run three terms cooperate Appellant refused physician. 19, 1976, evening of June On as well. with this doctor an interview victim, E.J., was at home with her alone reversal his argues now for for son. After she retired year two old trial court’s fail- upon based convictions like window evening, heard a noise a she competency hearing ure to hold a standing opening man and then saw a 1975). (Burns to Ind.Code 35-5-3.1-1 § positively not iden- her bedroom. could She competency a wearing right her as not tify the man she was appointment lenses, however, mere did notice and the contact she absolute a defendant struck The man to examine physicians man. of two he was short black statutory automatically invoke began screaming proceed- does not when she her 35-5-3.1—1. out in Ind.Code procedure § He set pillow case. ed to blindfold her 660 N.E.2d her home in to overhear 360 officer in order
Montague v. 181; 484, victim believed Brown v. 264 Ind. confession. The proc- if Adams’ confession were recorded 559. The statute and due others, prosecution and overheard then only require ess considerations that a hear- against not come her word would down to ing place take the evidence before where indignities his she could thus avoid the the court raises a bona fide or reasonable upon visited generally she believed were sanity. doubt as to Pate v. the defendant’s rape cases. complaining witnesses in Robinson, 836, (1966) 383 815; L.Ed.2d Cook v. police In response plan, the victim’s present In the arranged tape in E.J.’s install a recorder actually only before August room court was report submitted adjacent dining room police hid in a officers *4 appel- to examine psychiatrist who was able date, the vic- living room. On that appellant opined lant. This that doctor appellant tim met at the PACE office The mere fact that legally competent. him to her home. Once in- returned with pellant suggestion insanity filed his of does room, began talking side her E.J. of his mental condi- not constitute evidence appellant. During with the course of the 670, Cook, supra tion. at 258 Ind. 284 which forty-five minute conversation fol- N.E.2d 83. As the real evidence before lowed, appellant explained how he had bro- sanity the court rather than in- indicated philosophy ken into E.J.’s home and his sanity, justified in not hold- the court was rape They life. also discussed the and rob- ing State, (1976) Parsley v. See weapon bery and talked about the he had Ind., 185; State, (1976) 354 N.E.2d Brown v. night. point appel- with him that At this Ind., 346 559. dining lant room heard a noise in the
got up con- investigate. placed under II. fronted the he was officers arrest. Appellant argues next that the trial court by denying Suppress Appellant’s
erred
his Motion to
Suppress
Motion
incriminating
statements he made to the
obtained at this conversation was denied
victim, E.J.,
days
following hearing
several
after
crimes
25,
events surround-
was allowed
occurred. The facts and
1977. At
the victim
ing
were as
of the conver-
making
testify
of these statements
as to the substance
poor quality
tape
follows.
sation. Due to the
of the
evi-
recording,
it was not admitted into
1976,
victim,
During the summer of
Also,
dence.
the officers who hid
E.J.,
working
employment
as an
coun-
dining
testify
room were unable to
as to
selor for the Public Action and Correctional
what
said at the
be-
conversation
(PACE). Approximately
days
Effort
ten
cause his voice had not been audible at that
crimes, appel-
after the commission of the
Appellant
that the
distance.
now contends
lant, who had
one of the victim’s
been
trial court should have
evidence of
excluded
clients, called her at the PACE office. She
incriminating
conversation because the
thought
recognized appellant’s
she
voice as
police officers,
hiding
who
in the din-
that of the man
her and so
who attacked
room,
ing
the Miranda
did not administer
police.
she notified the
The victim testified
warnings prior to the conversation.
police
that she informed
that she was 99%
positive
appellant was her assailant.
safeguards
procedural
Miranda
belief,
acting upon
she
involving
before
this
only apply in situations
what the
suggested
wanted to be
certain so she
has termed
Supreme
100%
United States
Court
Oregon v. Math
interrogation.”
in her
tape
that a
recorder be installed
“custodial
711,
purpose
recording
iason, (1977)
home for the
a confes-
97 S.Ct.
714;
Ind.,
State, (1978)
hoped
sion she
v.
appellant.
to elicit from
She L.Ed.2d
Johnson
1236, 1240;
State,
suggested
Bugg
also
an
police
station
380 N.E.2d
Ind.,
III.
372 N.E.2d
precede
warnings need
state-
Miranda
arguments
Appellant next advances
private
by a defendant
ments made
imposed on
respect
to the sentences
Ind.,
citizen. Yates v.
First,
argued
that the
it
four counts.
461;
McFarland v.
conviction should
degree burglary
first
657, 665,
Appel-
336 N.E.2d
felony convictions
armed
“merge” into the
but con-
recognizes
principles
these
lant
arose from the
since all of the offenses
tends that under
facts
this
operative facts.”
same “set of
required because
warnings were
Miranda
sentences on
the three
also contends that
agent
police
rather
the victim was an
should not have
felony
the armed
counts
pres-
private citizen and because the
than a
consecutively.
been ordered to run
during the
police
ence of the
officers
con-
“merger” theo
As for
“custody”
versation constituted
within the
separate
ry, a
or not
decision as to whether
meaning
disagree
of Miranda. We
and in
upon multiple
imposed
be
doing
unnecessary to reach a
find it
inquiry
an
into
convictions is determined
regard
alleged
decision
the victim’s
are
“same” for
whether the offenses
agent
appel-
a police
status as
since we feel
purposes
jeopardy.
of double
Elmore v.
clearly
at
custody
lant was
not in
the time
554 F.2d 1000, 98 argument concerns Appellant’s final denial, hearing, petition of his without was cor- Appellant’s Suppress Motion to Motion to Correct of file Amended account a Belated denied and the victim’s rectly 2(1) which to Ind.R.P.C. proper- was Errors appellant the conversation with provides part: as at ly admitted trial. after
“Any
quate”
defendant convicted
a trial
within the meaning of Ind.R.P.C.
plea
or
guilty
petition
the court of 2(l)(a).
phrase “timely
adequate”
and
permission
for
conviction
file a belated
requirements
refers to the
that Motion to
motion for new
where:
days
Correct Errors be filed within 60
after
(a)
timely
no
adequate
entry
59(C),
motion to the
judgment,
Ind.R.Tr.P.
defendant;
correct error was filed for the
and that it be in the form set out in subsec-
Thus,
(b)
tion B of that
rule.
a Motion to
timely
failure to file a
motion
Correct Errors
to correct
which is filed within sixty
error was not due to the fault
defendant;
days
judgment,
but which fails to set out
alleged
specificity
errors with
as re-
(c) the
diligent
defendant has been
quired by
59(B),
Rule
would be timely but
requesting permission
file
a belated
inadequate.
the mere omission of
motion to
rule.”
correct error under this
issues in an
timely
otherwise
and proper
It
trial
seems that
counsel filed
motion would not render such motion inade-
a timely Motion to Correct Errors which
quate
grounds
peti-
as to serve as
for a
was
days
denied. Two
after the denial of
2(1).
tion under P.C.
To hold otherwise
motion, pauper
this
counsel was
would allow
to file
dilatory
defendant
for the purpose
prosecuting appellant’s
string
petitions by simply
an endless
appeal. Approximately three months later
inventing a new issue
time
each
his Motion
petition
filed his P.C. 2
which
to Correct Errors is denied.
alleged that the initial Motion to Correct
Errors
“inadequate”
failing
for
in-
On the
presented,
record
we find no de-
clude three issues which
desired
abuse
monstrable
of the trial court’s discre-
to preserve
appeal.
for
petition
This
denying
tion in
appellant’s petition without
summarily
overruled
the trial court on
the same day it was filed. The record does
judgment
of the trial court is af-
indicate that a
was ever re-
firmed.
quested on
petition.
*6
ruling
A trial court’s
on a Belat
GIVAN,
J.,C.
and HUNTER and PREN-
ed Motion to Correct Errors will be re
TICE, JJ., concur.
versed only upon
showing
of abuse of
State,.
discretion. Newland v.
DeBRULER, J.,
affirming
ap-
concurs
ure to hearing may be deemed a
waiver of any error in the trial court’s
refusal hold such Kindle v. 14, 24, 313 Ind.App.
721, 727.
Finally, we do not feel that
omission, by appellant’s counsel, trial
several issues which wished to
argue on appeal, is sufficient to render
initial Motion to “inade- Correct Errors