ATTORNEY FOR APPELLANT
Patricia Caress McMath
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
MARK LEWIS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9904-CR-241
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9802-CF-22396
ON DIRECT APPEAL
June 28, 2000
Mark Lewis was convicted of murder, felony murder, and three counts of attempted
robbery. In this direct appeal Lewis contends that (1) he was deprived
of his right to counsel of his choice when the trial court denied
his motion for continuance to hire private counsel on the morning of trial;
and (2) the trial court erred in admitting an x-ray that was not
properly authenticated. We affirm the trial court.
Factual and Procedural Background
In the early morning hours of February 6, 1998, Demiris Kerr, Shawn Tyler,
and James Phillips were sleeping in the living room of a home in
Indianapolis when two men with bandanas over their faces broke into the house.
The intruders were carrying guns and one announced a robbery. Kerr
identified one of the intruders as Lewis. While the two intruders were
in the house, a shotgun blast came through a window and more shots
were fired from outside as the shooter moved to other windows. Lewis
was struck in the arm and leg by the shotgun. As Lewis
and the other intruder fled the house, Lewis fired two shots. One
of these struck Tyler, killing him.
Lewis and two other men were charged with several counts and tried separately.
A jury convicted Lewis of murder, felony murder, and three counts of
attempted robbery. The trial court merged the murder and felony murder counts
and sentenced Lewis to fifty-five years for murder to be served concurrently with
ten years on each attempted robbery count.
I. Denial of Continuance to Retain Private Counsel
Lewis contends that the trial court violated his right to counsel of his
choice by denying a motion for continuance to hire private counsel on the
morning of trial. Lewis was arrested on May 10, 1998, and at
his May 12 initial hearing stated that he intended to hire private counsel.
A public defender was appointed three weeks later, and despite three continuances,
Lewis never retained private counsel in the ensuing eight months. On the
morning of trial, the trial court stated that Lewis case was the oldest
case with an individual in custody set for trial on that day and
asked whether the parties were ready for trial. The deputy prosecutor stated
that she was ready for trial, and Lewis public defender also stated she
was ready but requested a continuance on behalf of Mr. Lewis. She
explained that Lewis was under the belief that he will be able to
retain different counsel and that as of the preceding Friday afternoon she and
Lewis were not communicating very well. Lewis then expressed dissatisfaction with his
public defender, but after a brief colloquy the trial court stated that Lewis
has been a defense counsel for quite sometime. Ive had cases with
her where shes presented jury trials in front of me, and I find
that she has performed very competently and professionally. Therefore, her telling me
shes ready for trial, Im going to trust her as an officer of
this court and were going to go to trial today.
The trial court then went off the record in Lewis case to continue
the other cases set for trial on that day. Upon reconvening Lewis
case the trial court engaged in a brief exchange with a private attorney
who had appeared on Lewis behalf. The attorney stated that he would
not enter an appearance unless a continuance was granted. Because he had
been informed that a continuance had already been denied, he stated that he
was going to leave. The trial court observed that Lewis had been
in custody for more than eight months and could have hired private counsel
during that time; there had been two previous continuances of the case at
Lewis request; and defense counsel stated she was prepared to go to trial
that morning. The trial court reaffirmed its denial of Lewis motion for
The Sixth Amendment guarantees a criminal defendants right to have the assistance of
counsel for his defense.
A corollary of this right is the right
to choose counsel when a defendant is financially able to do so.
See Powell v. Alabama, 287 U.S. 45, 53 (1932) (It is hardly necessary
to say that the right to counsel being conceded, a defendant should be
afforded a fair opportunity to secure counsel of his own choice.); cf. Caplin
& Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (The [Sixth]
Amendment guarantees defendants in criminal cases the right to adequate representation, but those
who do not have the means to hire their own lawyers have no
cognizable complaint so long as they are adequately represented by attorneys appointed by
the courts.). However, the right to counsel of choice is not absolute.
United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990).
It is well settled that the right to counsel of choice must be
exercised at the appropriate stage of the proceeding. Parr v. State, 504
N.E.2d 1014, 1016 (Ind. 1987) (quoting Morgan v. State, 397 N.E.2d 299, 300
(Ind. Ct. App. 1979)); Collins v. State, 274 Ind. 619, 623, 413 N.E.2d
264, 267 (1980) (quoting Atkins v. State, 175 Ind. App. 230, 235, 370
N.E.2d 985, 989 (1977)). As this Court observed in Perry v. State,
638 N.E.2d 1236, 1241 (Ind. 1994), [c]ontinuances sought shortly before trial to hire
a new attorney are disfavored because they cause substantial loss of time for
jurors, lawyers, and the court. Indeed, this Court has held a number
of times that it is within a trial courts discretion to deny a
last-minute continuance to hire new counsel. See id. (one day before trial);
Beadin v. State, 533 N.E.2d 144, 145-46 (Ind. 1989) (two days before trial);
Dickson v. State, 520 N.E.2d 101, 105 (Ind. 1988) (one day before trial);
Vacendak v. State, 431 N.E.2d 100, 104-05 (Ind. 1982) (morning of trial); Collins,
274 Ind. at 622-23, 413 N.E.2d at 267 (morning of trial).
The State points to
Dickson and contends that the same result should obtain
here. In Dickson, a motion for continuance was renewed the day before
trial when the defendant moved to replace his public defender with private counsel
who would accept the case only if a continuance was granted. 520
N.E.2d at 105. The motion for continuance was denied, and this Court
found no abuse of discretion on appeal. Id. Although Lewis agrees
in his reply brief that the facts of that case are very similar,
he asserts that it should not control because Dickson merely asserted trial court
error in denying his motion for continuance and did not allege a violation
of his constitutional right to counsel of choice. If this is a
distinction, it is plainly not one of any consequence, as the same result
obtains in either circumstance. In Parr, when reviewing an allegation of error
in denying a continuance coupled with a contention that the defendant had a
right to counsel of his choosing, we observed that a trial court, in
the exercise of its discretion, may refuse to allow an accused to replace
counsel during or immediately before trial because such a substitution would require the
court to grant a continuance. 504 N.E.2d at 1016 (quoting Morgan, 397
N.E.2d at 300). The denial of a continuance is reviewed for an
abuse of discretion, see Perry, 638 N.E.2d at 1241, and the denial of
the right to counsel of choice, even under Lewis formulation, is reviewed to
determine whether the trial court acted unreasonably and arbitrarily, see Barham v. State,
641 N.E.2d 79, 82 (quoting United States v. Collins, 920 F.2d 619, 625
(10th Cir. 1990)). Evaluated under either standard, Lewis is not entitled to
a new trial.
As a final point Lewis asserts that after private counsel appeared in court
the trial court should have at a minimum determined how long a continuance
was needed. He contends that [t]he need for a short continuance should
not stand in the way of the defendants constitutional right to counsel of
his own choosing. We have never held that a trial court must
inquire as to the length of a desired continuance under these circumstances and
see no reason why we should now impose this burden on trial courts.
If newly retained counsel appear prepared to proceed in a specified time,
they can do so, and tell that to the court. In the
absence of such an offer, there is no obligation on the trial court
The trial court observed on the morning of trial that Lewis case was
the oldest case on the docket with an incarcerated defendant and accordingly continued
the other cases also set for that date. Not until after these
cases had been continued did private counsel appear in the courtroom. Granting
Lewis a continuance at this juncture, regardless of the length of the continuance,
would have meant that no case would have been tried on that day.
The courtroom would have sat vacant, and the time of dozens of
prospective jurors summoned for the trial would have been wasted. There was
II. Authentication of X-Ray
In September of 1998, the State filed a Motion for Leave to X-Ray
Defendant. The motion alleged that a witness in a co-defendants trial had
testified that Lewis said he had been shot with a shotgun. The
witness also observed blood on one or both of Lewis arms. The
State sought x-rays to determine whether pellets from the shell remained in Lewis
torso. The trial court granted the motion. On October 27, x-rays
of Lewis were taken at Wishard Hospital. The State sought admission of
one of these x-rays, States exhibit fifty-eight, at trial through firearms examiner Mickey
French. When asked at trial how he recognized the exhibit, French responded
that he had placed the name, case number, his initials, and the date
on the envelope containing the x-ray. He agreed that the x-ray was
in the same or substantially the same condition as when he placed it
in the envelope. The x-ray bears the name Mark Lewis, the date
of the x-ray (October 27, 1998), and the location of the x-ray (Wishard
Hospital). French testified that he was present along with defense counsel,
the deputy prosecutor, and a detective at Wishard Hospital when the x-ray was
taken on October 27. French also testified that he produced a laboratory
standard consisting of six different size shots and placed this standard in the
x-ray at roughly the same level as the pellet in Lewis leg.
The trial court admitted the x-ray over Lewis objection, observing that French had
testified he was present at the taking of the x-ray, had placed a
standard in the x-ray, and had identified that standard in the exhibit.
Pre-Rules of Evidence cases held that an x-ray is admissible in Indiana if
(1) it is properly authenticated and (2) the x-ray photographer is shown to
LaBelle v. State, 550 N.E.2d 752, 754 (Ind. 1990); accord
13A Robert Lowell Miller, Jr., Indiana Practice § 901.209, at 62-63 (2d ed.
1995). Lewis does not challenge the competency of the x-ray photographer but
rather challenges only its authentication. Evidence Rule 901(a) provides that [t]he requirement
of authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what
its proponent claims. The adoption of the Rules of Evidence does not
alter the requirement that the sponsoring witness must establish that the x-ray is
a true and accurate representation of the evidence portrayed. Labelle, 550 N.E.2d
at 754. We review a trial courts ruling on authentication for an
abuse of discretion. Id.
Labelle, this Court observed that most x-rays are authenticated through a physician
or x-ray technician who testifies that the exhibit accurately depicts the internal structure
of the person. Id. In that case, the State sought admission
of an x-ray through the victim who testified about the date and location
of the x-ray, the location of the bullet, and the presence of a
gold orb and neck brace that appeared in the x-ray. He also
testified that the x-ray exhibit at trial looked like the one he was
shown shortly after the x-ray was taken. We found no abuse of
discretion in allowing the victim to authenticate the x-ray. Id. We
reach the same conclusion in Lewis case, where there is as much, if
not more, evidence that the exhibit was what French claimed it to be.
The x-ray bears the name Mark Lewis, Wishard Hospital, and the date
on which it was taken. Each of these items is corroborated by
the testimony of French. French removed the x-ray from an envelope bearing
his markings. In addition, French identified the six-shot standard that he included
in the x-ray.
Under these circumstances, the trial court did not abuse
its discretion in finding that French had sufficiently authenticated the x-ray.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Lewis also notes that Article I, Section 13 of the Indiana Constitution
guarantees a criminal defendant's right "to be heard by himself and counsel."
Although he observes that the state constitutional right attaches earlier than under the
see Taylor v. State, 689 N.E.2d 699, 703-04 (Ind. 1997), he
does not suggest that the standard under the state constitution is any higher
than under the federal constitution. Indeed, he urges that the same standard
should apply. Accordingly, we address the claim under the Sixth Amendment.
Lewis points to
Barham v. State, in which the Court of Appeals
reversed a conviction because the trial court "interfered unreasonably and arbitrarily with Barham's
right to retain counsel of his choice by denying his private counsel's appearance."
641 N.E.2d 79, 84-85 (Ind. Ct. App. 1994) (emphasis added). In
Barham, the defendant was represented by a public defender but stated at a
pretrial conference held six days before the scheduled jury trial that he had
retained private counsel. Id. at 81. The judge pro tempore observed
that if private counsel entered her appearance she "needs to be ready to
try this matter on Monday." The next day, five days before the
scheduled trial, private counsel entered her appearance and simultaneously filed a motion for
continuance. The presiding judge, without conducting a hearing, refused to allow the
appearance to be entered. The Court of Appeals observed that, although private
counsel had filed a motion for continuance, there was no showing that she
could not have been prepared for trial by the scheduled date. Id.
at 83-84. Indeed, she offered to act as co-counsel at the trial,
"indicating that she could have been prepared for trial on the scheduled date."
Id. In addition, the Court of Appeals observed that Barham had
caused no prior delays in his case, was in jail and would not
benefit from a continuance, and had previously expressed dissatisfaction with his attorney.
Here, unlike in Barham, at the time the trial court denied the continuance,
counsel had not yet entered an appearance. In addition, when private counsel
did appear in court, he expressly conditioned the entry of his appearance on
the granting of a continuance. Unlike Barham, the trial court in this
case did not refuse to accept private counsel's appearance.
When we look at a fired projectile in the body, an x-ray may
magnify it. It doesn't tell you how deep in the body, whether
it's close to the skin, in the middle -- so when I place
my standard in it, I'm placing it at roughly the same level so
that my standard will magnify the same as the projectile that may be
in the body so that I can come close to doing a one-on-one
Lewis contends that "French's own testimony is that he did not put
any objects in the x-ray. He testified that when Mark Lewis was
x-rayed, his assistant put the comparison shots in the appropriate places." Lewis
does not provide a record citation for this contention but it appears he
is referring to French's testimony, "What I -- what I do and my
assistance in this particular x-ray . . . ." Lewis quotes this
passage earlier in his brief with "[sic]" following the word "assistance." However,
it appears that French was merely referring to his role in the process,
not the involvement of an "assistant." Indeed, a few lines later French
stated "when I place my standard in it . . . ."
Moreover, when listing the people present for the x-ray, French did not mention
any assistant. Although it appears that French placed the standard in the
x-ray himself, our conclusion would be the same had an assistant done so
at the direction of French.
Footnote: Lewis also suggests that "no one even testified that the x-ray of
the leg contained shot from a firearm, a necessary fact for Mr. French's
testimony to be relevant. The objects in the x-ray of the leg
itself could have been anything." To the extent this is an objection
on relevancy grounds, it should have been made in the trial court.
Because it was not lodged there, we will not entertain it here.
See Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998) ("A party may
not object on one ground at trial and seek reversal on appeal using
a different ground.").