Opinion
No. 05A02-1012-CR-1397
08-03-2011
DUSTIN L. COLEMAN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : ROBERT O. BEYMER Portland, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ROBERT O. BEYMER
Portland, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ANN L. GOODWIN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE BLACKFORD CIRCUIT COURT
The Honorable Dean A. Young, Judge
Cause No. 05C01-0908-FB-42
BARNES , Judge
Case Summary
Dustin Coleman appeals his conviction for Class B felony neglect of a dependent. We affirm.
Issues
Coleman raises eleven issues in his statement of issues. We address the four issues developed in the argument section of Coleman's brief, which we restate as:
Coleman did not raise the remaining issues in the argument section of his brief. The argument section of a brief shall contain an appellant's contentions supported by cogent reasoning and citations to authority and the record. Ind. Appellate Rule 46(A)(8)(a). In the absence of arguments, we decline to address the remaining issues.
I. whether the trial court properly denied his motion for change of judge after the trial court rejected his guilty plea;
II. whether the trial court properly allowed trial counsel to serve as stand-by counsel after Coleman was permitted to proceed pro se mid-trial;
III. whether the trial court properly admitted photographs into evidence; and
IV. whether the trial court properly denied his request for a continuance or a mistrial based on a witness's changed testimony.
Facts
In August 2009, Coleman lived with Ciera Sargent and their two children, eighteen-month-old G.C. and three-month-old T.C., in Hartford City. Sargent and Coleman had agreed that Sargent would care for the children during the day, and Coleman would care for them at night. On August 6, 2009, Sargent woke G.C., who was still asleep at 12:30 p.m. Coleman's mother, who was visiting, observed two bruises on G.C.'s forehead and an injury to his lip. After G.C. drank juice, he began vomiting. G.C. was not acting like himself and was lethargic. Coleman's mother suggested they take G.C. to the emergency room. Coleman's mother helped Coleman bathe G.C. and noticed other bruises on his body.
Around 1:00 p.m., Coleman left with his mother to help a friend who had caught a turtle. Coleman returned around 3:00 p.m., and Sargent left for an appointment. When Sargent returned, Coleman and G.C. were asleep. G.C.'s condition had worsened, and Sargent took him to the Blackford Community Hospital at around 6:00 p.m. Hospital staff observed nineteen bruises and contusions including bruises on G.C.'s stomach and the bottoms of his feet. Because some of the results of blood tests and a urinalysis were of a critical nature, G.C. was taken by helicopter to Riley Hospital in Indianapolis. G.C. was examined by Dr. Hicks at Riley on August 7, 2009, and photographs of his injuries were taken. Dr. Hicks concluded that G.C. suffered internal injury to his spleen and possibly his liver, bowel, and pancreas. Dr. Hicks concluded that G.C.'s spleen was lacerated, which could have been caused only by "significant force" not "when children are playing and fall . . . ." Tr. p. 300. Dr. Hicks described G.C.'s injuries as "non-accidental or abusive injury." Id. at 318.
On August 19, 2009, the State charged Coleman with Class B felony battery and Class B felony neglect of a dependent. On January 20, 2010, the trial court conducted a change of plea hearing during which Coleman pled guilty to Class C felony neglect of a dependent. After reviewing the presentence investigation report, however, the trial court rejected the plea agreement. On July 6, 2010, Coleman filed a motion for change of judge alleging that the trial court judge was biased and prejudiced based on comments made during a bond reduction hearing and the hearing during which the trial court rejected Coleman's guilty plea. The trial court denied this motion the next day.
A jury trial began on July 20, 2010. Coleman was represented by David Wilson for most of the trial. However, during the defense's presentation of evidence, Coleman requested to represent himself. After advising Coleman of the dangers of proceeding pro se, the trial court granted Coleman's request and allowed Wilson to remain as stand-by counsel. During the remainder of the trial, Coleman called and questioned witnesses, consulted with Wilson regarding the questioning of witnesses and jury instructions, was questioned as a witness by Wilson, and allowed Wilson to make the closing argument. The jury found Coleman guilty of Class B felony neglect of a dependent but was unable to reach a unanimous verdict on the battery charge, which was eventually dismissed. Coleman now appeals.
Analysis
I. Change of Judge
Coleman argues that, at the hearing in which it rejected the plea agreement, the trial court expressed an opinion as to his guilt or innocence and demonstrated a bias or prejudice against him. Coleman cites a portion of the transcript from that hearing and the remainder of his argument provides:
A change of judge is required when judge's comments about Defendant, show antagonism and bias toward the Defendant that a fair judgment was virtually impossible, or where theAppellant's Br. pp. 8-9.
judge has expressed an opinion about guilt or innocence of the Defendant. French v. State, 754 N.E.2d 9 (Ind. Ct. App. 2001). In this case the Court should have granted Defendant's Motion for Change of Judge.
The State contends that Coleman waived the issue by failing to provide cogent argument supported by adequate citation to authority and points out that Coleman did not include a standard of review or analysis of Criminal Rule 12, which describes a specific procedure for requesting a change of judge in felony and misdemeanor cases. Although we prefer to address issues on the merits, under these circumstances we agree with the State. If we were to address Coleman's claim, it would be necessary for us to abdicate our role as an impartial tribunal and become an advocate for Coleman by developing an argument regarding his compliance with Criminal Rule 12(B). As we have observed, "This court is a neutral arbiter of disputes and not an advocate for either party." State v. Peters, 921 N.E.2d 861, 867 (Ind. Ct. App. 2010). Accordingly, this issue is waived for Coleman's failure to develop a cogent argument supported by authority and to include an appropriate standard of review and the procedural and substantive facts necessary for our consideration of this issue. See Ind. Appellate Rule 46(A)(8).
Criminal Rule 12(B) specifically provides:
In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.
II. Stand-by Counsel
Coleman claims that the trial court improperly permitted Wilson to remain as stand-by counsel because Coleman was not permitted to control the questioning of witnesses. Again, this issue is not well-developed by Coleman. Nevertheless, our review of the record confirms that the trial court's decision to allow Wilson to remain as standby counsel was not improper.
Whether the trial court's actions violate a defendant's constitutional right to self-representation is a question of law that we review de novo. Hill v. State, 773 N.E.2d 336, 342 (Ind. Ct. App. 2002), reh'g granted in part on other grounds, trans. denied. When a defendant demonstrates competence to proceed pro se, "he 'must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.'" Id. at 343 (quoting McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949 (1984)).
During the presentation of his defense, Coleman requested to represent himself. After advising Coleman of the pitfalls of self-representation, the trial court permitted him to proceed pro se with Wilson as stand-by counsel. Coleman then questioned several witnesses himself, Wilson questioned Coleman, thus allowing Coleman to testify, Wilson participated in a discussion of jury instructions outside the presence of the jury, and Coleman agreed to allow Wilson to present the closing argument. Coleman never objected to or questioned Wilson's participation and, at times, Coleman even sought assistance from Wilson. Without more, Coleman has not established that the trial court improperly interfered with his right to self-representation.
III. Admission of Photographs
Coleman argues that the trial court improperly admitted into evidence photographs of G.C. taken at Riley on August 7, 2009. Coleman contends the photographs were inflammatory, prejudicial, and not relevant because they were taken after G.C. was admitted to the hospital. He asserts that, because he was only convicted of neglect of a dependent, the only relevant photographs would have been those at the time of G.C.'s hospital admittance.
In his brief Coleman states the photographs were taken sometime after September 7, 2010. The evidence suggests, however, that the photographs were taken on August 7, 2009. Moreover, Coleman was tried in July 2010.
Coleman's trial objection appears to be based on the same ground raised in the unsuccessful motion in limine, which was that the photographs were allegedly inflammatory. Coleman did not object to the timing of the photographs. "A defendant may not object on one ground at trial and raise another on appeal; any such claim is waived." Houser v. State, 823 N.E.2d 693, 698 (Ind. 2005). This issue is waived.
Waiver notwithstanding, the admission of photographic evidence is within the trial court's sound discretion, and we review the admission of photographic evidence only for abuse of discretion. Helsley v. State, 809 N.E.2d 292, 296 (Ind. 2004). "Photographs, as with all relevant evidence, may only be excluded if their probative value is substantially outweighed by the danger of unfair prejudice." Id. (citing Ind. Evidence Rule 403). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 401.
The photographs depicted the bruises and contusions G.C. suffered. At the very least, the photographs were relevant to the battery charge. They were also relevant to the neglect charge to the extent it was for the jury to determine whether Coleman should have sought medical treatment for G.C. sooner.
As for the prejudicial effect of the photographs, Coleman asserts, without citation, that they were taken after the bruising started to appear. The evidence shows, however, that bruises on G.C.'s head, shoulder, and stomach were visible before he was taken to the hospital and the photographs are consistent with the "child injury location chart" prepared by a nurse at Blackford Community Hospital on August 6, 2009, the day G.C. was admitted to the hospital. Without more, Coleman has not established that the probative value of the photographs was outweighed by the unfair prejudice flowing from it. See Helsley, 809 N.E.2d at 296 ("An appellant must establish that the probative value of the evidence was outweighed by the unfair prejudice flowing from it."). The trial court did not abuse its discretion in admitting the photographs into evidence.
IV Sargent's Testimony
Coleman argues that the trial court improperly denied his request for a continuance or a mistrial based on Sargent's testimony. "Rulings on non-statutory motions for continuance . . . lie within the discretion of the trial court and will be reversed only for an abuse of that discretion and resultant prejudice." Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000).
At trial Sargent testified on behalf of the State and was cross-examined by Wilson. Wilson then recalled Sargent during the presentation of the defense. The following exchange took place between Wilson and Sargent:
We refer specifically to Wilson in our analysis because Coleman recalled Sargent a second time and questioned her directly after he requested to continue pro se. Coleman's questioning of Sargent is not at issue on appeal.
Q. Do you have any notion at all that Dustin did any of these things that he's being accused of?Tr. pp. 414-15. Sargent went on to explain that she initially told the investigating officer that she did not believe Coleman could do that sort of thing to his children, that she changed her mind three weeks prior to trial when speaking with her counselor, and that she advised police officials or the prosecutor of her changed opinion approximately a week prior to trial. Following a cross-examination, redirect-examination, recross- examination, and another redirect-examination, Wilson requested a mistrial or a two-week continuance because the prosecutor had not informed him of Sargent's changed testimony. The State argued that Wilson could have deposed Sargent but did not. The trial court denied Wilson's requests, explaining "this is a [sic] inculpatory statement that has been elicited as a result of your own questioning . . . ." Id. at 425.
A: Yes. I think Dustin did do this.
Q. You think Dustin did do it?
A. Yes, I do.
Q. What did he do?
A. I'm not sure.
Q. I'm sorry?
A. I said I'm not sure.
Q. You're not sure other than the fact that you're relatively comfortable he did it?
A. Yes. Because I know I didn't. And he was the one up with him through the evenings.
We assume Coleman's objection was timely, and address his argument. Citing Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006), Coleman asserts, "Failure by one party to disclose a material change in testimony of a witness, so the other party could depose the witness, as for a continuance or request a mistrial is error which requires the judgment to be set aside." Appellant's Br. p. 10. Outback, however, involved an Indiana Trial Rule 60(B) motion for relief for judgment based on a party's failure to supplement an interrogatory response during trial. Our supreme court determined that Indiana Trial Rule 26(E) requires that a supplemental response be "seasonably" made and that it may be reasonable and appropriate to modify the method of supplementing a discovery response if new information is discovered on the eve of or during trial. Outback, 856 N.E.2d at 78.
Coleman, however, provides us with no analysis of the procedural differences between the negligence claim at issue in Outback and his criminal trial and makes no mention of Indiana Trial Rule 26 in his brief. He contends only that, "Blackford Circuit Court had previously issued a Discovery Order (standard in criminal cases) which required disclosure of anticipated testimony." Appellant's Br. p. 10. Although Coleman did include his August 21, 2009 motion for discovery and the trial court's order granting the motion in his Appendix, he provides us with no analysis of what specific provisions of that request were violated or the fact that he, not the prosecutor, elicited this testimony from Sargent.
Moreover, as the State points out, although the State has a constitutional duty to disclose evidence favorable to the defendant, there is no affirmative duty to provide inculpatory evidence. Booker v. State, 903 N.E.2d 502, 504-05 (Ind. Ct. App. 2009), trans. denied. Without more, Coleman has not established that the trial court abused its discretion in denying the requests for a continuance or mistrial based on the alleged discovery violation.
Conclusion
Coleman's argument regarding his motion for change of judge is waived. Coleman has not established that the trial court improperly permitted Wilson to remain as stand-by counsel. Coleman's argument regarding the timing of the photographs is waived. Waiver notwithstanding, Coleman has not shown that the trial court abused its discretion in admitting the photographs of G.C. into evidence. Finally, Coleman has not established that the trial court abused its discretion by denying his requests for a continuance or mistrial. We affirm.
Affirmed. RILEY, J., and DARDEN, J., concur.