Goffe v. State

DISSENTING OPINION

HOFFMAN, J.

The majority opinion reverses the judgment of the trial court on the grounds that defendant was not informed by the trial court of his right to pauper attorney and was prejudiced by certain comments made by the prosecuting attorney to the jury. Finding that I cannot agree with either of these grounds for reversal, I respectfully dissent.

IC 1971, 35-4.1-l-2(a) (Burns Code Ed.), provides, in pertinent part, as follows:

“The defendant shall not be called upon to plead until the court has advised him of his right to retain counsel and his right to be provided with counsel at public expense if he is financially unable to retain counsel as provided by law.”

In the case at bar, defendant waived formal arraignment and entered a plea of not guilty to each count of the indictment. In so doing, defendant waived his right to be informed of his right to counsel under the provisions of IC 1971, 35-4.1-1-2, supra.

Moreover, the majority states that “[t]he record does reveal that Goffe was indigent at the time of trial* * * .” However, the record shows that defendant was notified of counsel’s petition to withdraw. On October 17, 1975, more than four months prior to the date of trial, defendant appeared in person at the Omnibus Hearing. Furthermore, at no point up to the time of trial did the defendant indicate that he was without money, means, or credit to employ an attorney.1 The only evidence presented at the time of trial was in cross-examination of *129defendant when he presented his defense. Such evidence was to the effect that defendant had been unemployed for four months. However, any evidence presented at this juncture of the proceedings is not timely. Consequently, I cannot agree that the record demonstrates “Goffe’s unwilling pro se representation.”

The majority opinion also states that certain comments by the prosecuting attorney deprived appellant of a fair and impartial trial. During voir dire examination, the State asked the prospective jurors whether they would in any way hold it against the State or would tend to sympathize with the defendant due to the fact that defendant was not represented by an attorney. However, the purpose of voir dire examination is to permit discovery of grounds for challenges for cause and peremptory challenges. Hart v. State (1976), 265 Ind. 145, 352 N.E.2d 712. A juror may be challenged for cause if he is biased or prejudiced for or against the defendant. IC 1971, 35-1-30-4 (Burns Code Ed.). The question asked the individual prospective jurors had as its purpose the discovery of any bias or prejudice the juror may have due to the fact a defendant is not represented by counsel. The question did not inject prejudicial matter into the case, and was therefore a proper question to put to the prospective jurors.

Additionally, I do not find in the remarks of the trial judge any prejudicial inference that defendant had inconvenienced the court by not being represented by counsel. Placed in context, the remarks of the trial judge prefatory to his participation in voir dire examination are as follows:

“Now, I am not an adversary. I am not here representing the defendant in any way, but it is my over-all function to see that everyone receives a fair trial including the defendant. So I am going to ask several questions here so that the court is assured that the defendant will receive a fair trial. But I don’t want to give you the impression in any way that I am representing him. I am simply representing the concept that he is in the courtroom and he is entitled to a fair trial. It would make it easier for the court if he had counsel with him. He does not have to. So, I will have to participate a little bit in this voir dire examination.”

These comments merely informed the jury why the trial judge was participating in voir dire examination.

*130Finally, it is improper to raise the statements of the prosecutor to the level of constitutional error so that prejudice may be assumed.

For these reasons I would affirm the judgment of the trial court.

NOTE — Reported at 374 N.E.2d 560.

. The affidavit of the trial judge to “clarify the record at the trial level” cannot be used to impeach the certified record. Accordingly, it is improper to consider the affidavit in resolving the issue presented on appeal.