Gary T. SEAY, Appellant, v. STATE of Indiana, Appellee.
No. 82S00-8801-CR-61
Supreme Court of Indiana
March 7, 1990
Rehearing Denied May 9, 1990
550 N.E.2d 1284
DeBRULER, Justice.
A suppression by the prosecutor of evidence favorable to an accused violates due process when the evidence is material either to guilt or punishment. United States v. Agurs (1976), 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342; Rowan, supra. However, the facts here reveal that defense counsel accepted the statement of the prosecutor that he did not have knowledge of the existence of the recorded statement until after April 7, 1988. Thus, there was no negligent destruction or withholding of evidence by the prosecutor, and the trial court granted a proper remedy. Therefore, appellant has not been so prejudiced as to warrant reversal.
Appellant finally contends that the verdict was not supported by sufficient evidence. In addressing the issue of sufficiency of evidence, we will affirm the conviction if, considering only the probative evidence and reasonable inferences supporting the verdict, without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Butler v. State (1989), Ind., 547 N.E.2d 270; Case v. State (1984), Ind., 458 N.E.2d 223.
It is appellant‘s assertion that William Wills, appellant‘s chief accuser, was an admitted alcoholic, drug abuser, and had psychiatric problems; thus his testimony should not be deemed credible as a matter of law. Appellant likewise attacks the testimony of Tammy Keesling on the same grounds. While appellant recognizes the standard of review, his position is for this Court to reweigh the evidence. This we will not do. Even assuming the testimony of William Wills and Tammy Keesling would not have been found credible if the psychological and psychiatric records of Wills and a tape recorded statement of Keesling were admitted, there was sufficient evidence to support the verdict.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DeBRULER and DICKSON, JJ., concur.
PIVARNIK, J., not participating.
Susan K. Carpenter, Public Defender, Teresa D. Harper, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was tried to a jury and found guilty of two counts of dealing in a Schedule II controlled substance,
The evidence produced at trial which tended to support the determination of guilt showed that on two separate occasions, August 14, 1986, and September 2, 1986, appellant met with a confidential informant and an undercover policeman and made two sales of Dilaudid, a controlled substance. Both the informant and the policeman testified to the transactions at appellant‘s trial.
Appellant‘s first claim on appeal is that he was denied his right to counsel in contravention of the
At a hearing on Standley‘s motion to withdraw, the trial court advised appellant that should the motion be granted, a fourth public defender would not be appointed and he would have to proceed pro se. Prior to trial, the court offered to reappoint Standley, who stood prepared to proceed on appellant‘s behalf, if appellant had changed his mind about wanting counsel, and the court advised appellant of the hazards of pro se representation. Appellant reiterated that a conflict of interest existed between the two men and indicated that Standley was unacceptable to him. One accused of a crime does have a constitutional right to be represented by counsel, but not necessarily to be represented by counsel of his own choosing. The recourse open to a defendant who has rejected court-appointed counsel is to retain his own counsel or to proceed pro se. Jackson v. State (1985), Ind., 483 N.E.2d 1374, 1377. Appellant was not denied his right to counsel.
Appellant moved for dismissal of all of the instant charges, asserting that the State brought successive prosecutions of charges that should have been joined and tried in one action. His second claim on appeal is that the State wrongfully brought these successive prosecutions in order to obtain multiple, consecutive habitual offender determinations and that the denial of his motion to dismiss was error.
During the late summer and early fall of 1986, appellant made four separate sales of controlled substances to a police informant and an undercover policeman. Cause No. 5658 came to trial in February of 1987, charging appellant with two counts of dealing in a controlled substance based on sales made on July 14, 1986, and August 4, 1986, and seeking a habitual offender sentence enhancement. Appellant was convicted on both counts and was found to be a habitual offender. He received an executed sentence of fifty years, twenty years on each count, those sentences to run concurrently, and a thirty-year sentence enhancement of one of the sentences based on the habitual offender determination. While the jury was deliberating on Cause No. 5658, the State filed the charges underlying this appeal, which were based on the August 14 and September 2 sales. The State again sought a habitual offender determination and based its allegation on the identical underlying felonies which had supported the habitual offender determination in Cause No. 5658. The instant cause, No. 5938, was tried in August of 1987 and, as previously noted, resulted in two consecutive sentences, one of which was enhanced on the habitual offender determination, for an executed sentence of sixty years. The trial court presiding over this cause ordered that its sentence be served consecu-
Appellant first argues that by filing and prosecuting the four charges in two successive actions, the State deprived him of his statutory right to joinder of offenses and that, therefore, all of the instant charges should have been dismissed. This argument is without merit.
Appellant argues that had the State not delayed in filing the instant charges, the trial court would have had a mandatory duty to join these offenses with those tried in Cause No. 5658 under
Finally, appellant claims that
A defendant who has been tried for one [1] offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section [
35-34-1-9 ] of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former prosecution.
Prosecution barred for different offense.
(a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant....
(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.
In Webb v. State (1983), Ind., 453 N.E.2d 180, cert. denied, 465 U.S. 1081, 104 S. Ct. 1449, 79 L. Ed. 2d 767, a man was killed during a burglary of his home, and Webb was tried for and acquitted of knowingly murdering this man. Subsequent to that acquittal, Webb was charged with the felony murder of the man‘s wife, who was killed during the course of the same burglary. This Court found that Webb was not entitled to have the second indictment dismissed for failure to join the felony murder charge arising from the death of the wife with the murder charge arising from the death of the husband even though both occurred during the same burglary. We found that the doctrine of collateral estoppel did not act to bar the second prosecution, thus negating the applicability of
In State v. Burke (1983), Ind.App., 443 N.E.2d 859, a minor was stopped by a policeman, who observed several cans of beer, marijuana, and phencyclidine in the car. The defendant was charged with and pleaded guilty to possession of alcohol. He was subsequently charged with possession of marijuana and possession of a controlled substance. The defendant moved for dismissal, arguing that
The Court of Appeals rejected this interpretation, finding that Indiana has rejected the “same transaction” approach to assessing double jeopardy violations, id. at 861 (citing Washington v. State (1981), Ind., 422 N.E.2d 1218; Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893), and that therefore there was no constitutional requirement that the offenses be joined for trial. The Court further found that there was no statutory requirement that the offenses be joined for trial because the joinder statute,
Neither
Appellant‘s next contention is that, by filing and prosecuting successive indictments, the State wrongfully obtained multiple, consecutive habitual offender sentence enhancements which it would have been barred from seeking otherwise. We agree. In Starks v. State (1988), Ind., 523 N.E.2d 735, this Court discussed the rationales which underlie and the policies which distinguish the power to give consecutive sentences and the power to enhance sentences based on a finding of habitual offender status:
[S]entencing courts [are statutorily granted] the power to order consecutive sentences in their discretion. The [statutory] provision appears unlimited in scope, applying to the class of all sentences. Yet the power to order consecutive sentences is subject to the rule of rationality and the limitations in the constitution. The sentence enhanced under the habitual offender statute is a special statutory one. It can have the dramatic effect of increasing a single sentence from two years to half a lifetime. A basis for such a gross impact is the existence of the two prior unrelated felony convictions and sentences, and the dangerous nature of the offender which they bespeak. A basis for the gross impact which consecutive sentences may have is, by contrast, the moral principle that each separate and distinct criminal act deserves a separately experienced punishment. Furthermore the habitual offender status determination carries a more binding effect upon the sentence tha[n] does the determination of multiple criminal acts. Therefore, the purpose and process of the felony habitual offender statute has special and distinct dimensions.
[The relevant] statutes are silent on the question of whether courts have the authority to require habitual offender sentences to run consecutively, when engaged in the process of meting out several sentences. In the absence of express statutory authorization for such a tacking of habitual offender sentences, there is none.
Id. at 736-37. The reasoning in Starks applies with equal force in situations where the State could join charges for related offenses under
We also find that the trial court acted beyond the scope of its authority in ordering its sentence to be served consecutively to that imposed by the trial court in Cause No. 5658. We have previously stated that the language of
The general authority is limited to those occasions when a court is meting out two or more terms of imprisonment. If a court is contemporaneously imposing two or more sentences, it is granted the general statutory authority to order them to be served consecutive to one another. Section (a) does no more than this.
Kendrick v. State (1988), Ind., 529 N.E.2d 1311, 1312. The trial court was fully authorized to order its sentence in Count II to be served consecutively to its sentence in Count I since these were contemporaneously before the court. However, the sentence appellant had previously received from another court in another cause was not a proper subject for this court‘s consideration in determining the propriety of consecutive sentences, and the court acted beyond the scope of its authority when it ordered the commencement of the instant sentence to be postponed until the completion of the sentence imposed in Cause No. 5658. The court‘s sentencing order is vacated to the extent that it orders appellant to serve the sentences imposed in Cause Nos. 5658 and 5938 consecutively.
Appellant‘s conviction is affirmed. This cause is remanded to the trial court with the order that the habitual offender sentence enhancement on Count I be vacated. The court is further ordered to vacate that part of its sentencing order which calls for this sentence to be served consecutively to the sentence imposed in Cause No. 5658.
GIVAN, J., dissents with separate opinion.
PIVARNIK, J., not participating.
GIVAN, Justice, dissenting.
I respectfully dissent from the majority opinion in that it holds the habitual offender statute may not be applied to both convictions of appellant.
The majority opinion reads into
The majority cites as their authority, Starks v. State (1988), Ind., 523 N.E.2d 735. Justice Pivarnik and I dissented in that case with the statement that in our belief the majority “invades the province of the legislature and adds a restriction to the statute by judicial fiat.” Id. at 737. I adhere to my dissent in that case. I do not think it is proper for this Court in effect to amend a statute by narrowing its operation where there is no language in the statute to justify such a restriction.
I would affirm the trial court‘s decision in its entirety.