Hinds v. State

Decision Date10 October 1984
Docket NumberNo. 4-783A230,4-783A230
PartiesLester Clark HINDS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Mark A. Ryan, Tippecanoe County Public Defender, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

A jury found Lester Clark Hinds guilty of robbery with a deadly weapon, a Class B felony under IND.CODE 35-42-5-1 (1982). He appeals, raising the following issues:

1. Whether there was sufficient evidence to support Hinds' conviction;

2. Whether the trial court erred in denying Hinds' motion for discharge under Criminal Rule 4(C);

3. Whether the trial court improperly limited voir dire of a prospective juror;

4. Whether unduly suggestive identification procedures before trial tainted the identification testimony of two state witnesses;

5. Whether the trial court erred in admitting a speculative in-court identification of Hinds by another state witness;

6. Whether the trial court erred in excluding evidence of other similar robberies, tendered to prove the robbery at issue was committed by someone other than Hinds; and

7. Whether the trial court erred in rejecting two instructions tendered by Hinds.

We affirm.

I.

In assessing the sufficiency of the evidence, we neither weigh the evidence nor judge credibility. We consider only the evidence most favorable to the state with all reasonable inferences therefrom, and we will affirm if there is substantial evidence on each element from which the trier of fact might reasonably infer guilt beyond a reasonable doubt. Harris v. State, (1981) Ind., 425 N.E.2d 112. Hinds' robbery conviction was based on IC 35-42-5-1 (1982):

A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person;

* * *

commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon ....

The evidence at trial revealed the following facts. On the night of December 11, 1980, a man entered the Village Bottle Shop Liquor Store in West Lafayette, Indiana. The man was dressed in heavy coveralls and wore sunglasses, a bandanna, and a stocking cap. He walked into a room where wine was displayed, then came out with a gun in his hand and the bandanna pulled up over his face. He ordered everyone present--the store's manager, two employees, and a customer--to lie face down on the floor or he would blow their heads off. The man then walked to the cash registers, where the employees heard him take money from the drawers. The man fled, and when the store's employees got up and checked the cash register, they found that money had been taken. At trial, the two employees identified the defendant, Lester Hinds, as the man who robbed the store.

This evidence is abundantly sufficient to prove that Hinds entered the liquor store on the night in question and threatened to kill those present with a pistol--plainly a deadly weapon under IC 35-42-5-1. Hinds argues, however, that there was insufficient evidence to prove he "took property from another person or from the presence of another person." Id. We disagree. Although no one saw Hinds remove money from the store's cash registers, one employee said he heard Hinds do so. Further the store's manager and both employees testified that money was missing from the cash registers when Hinds left the store. From this evidence the jury could reasonably infer beyond a reasonable doubt that Hinds took money from the store by threatening the use of force. There was sufficient evidence to support Hinds' conviction.

II.

Hinds next contends the court erred in denying his motion for discharge under Ind.Rules of Procedure, Criminal Rule 4(C), which requires that persons charged with and arrested for a crime be tried within one year. In reviewing this claim, we must first determine when the one-year period began to run. The record shows that an information was initially filed against Hinds in the Tippecanoe County Court on December 30, 1980, and that, on the same day, he was served with an arrest warrant in the Montgomery County jail, where he was being held on unrelated charges. On July 22, 1981, a new information charging the same robbery was filed in the Tippecanoe Circuit Court. This transfer to the Circuit Court was necessary because the County Court, in which the charge had been pending, had no jurisdiction to try Class B felony cases. 1

Based on these facts the state contends the one-year period set by C.R. 4(C) did not begin until July 22, 1982, when an information was finally filed in a court having jurisdiction to try Class B felonies. The state relies upon the decisions in State ex rel. Wickliffe v. Judge of the Criminal Court, (1975) 263 Ind. 219, 328 N.E.2d 420, and Banks v. State, (1980) 273 Ind. 99, 402 N.E.2d 1213. In both cases, defendants preliminarily charged in the municipal court with murder sought discharge under C.R. 4(B) after the state failed to try them within 70 days of their speedy trial motions. In each case, the supreme court held the defendant was not entitled to discharge. The rationale of these cases was that, because the municipal court had no jurisdiction to try the defendant on a murder charge, a motion under C.R. 4(B) requesting it to do so was a "nullity" and thus was ineffective to trigger the 70-day limit set by C.R. 4(B). State ex rel. Wickliffe, supra, 263 Ind. at 222, 328 N.E.2d at 422.

This case, however, is distinguishable from State ex rel. Wickliffe and Banks in that Hinds' motion for discharge was based not on C.R. 4(B) but on C.R. 4(C). If Hinds had requested that the County Court try him within 70 days, an act beyond that court's jurisdiction, his motion would have been a nullity. The one-year limit set by C.R. 4(C), however, is not initiated by a motion, but rather by the filing of charges against a defendant and his arrest. C.R. 4(C). The decisions in Banks and State ex rel. Wickliffe, supra, clearly do not mean that informations filed in county courts or arrest warrants issued by such courts are "nullities." Rather, such preliminary informations and arrest warrants are indisputably valid and thus effective to trigger the one-year period set in C.R. 4(C). We accordingly find that the one-year period within which the state was required to try Hinds began, not when his case was transferred to the Circuit Court, but when he was arrested and charged with robbery in the County Court.

This brings us to the question of when Hinds was "arrested" for purposes of C.R. 4(C). Hinds argues he was arrested on December 30, 1980, when a sheriff served the arrest warrant on him in the Montgomery County jail, where he was being held on unrelated charges. The state contends Hinds was not arrested until February 2, 1981, when the Tippecanoe County Court ordered the sheriff to return him to Tippecanoe County for a line-up. Faced with identical facts, our supreme court has held that "arrest" within the meaning of C.R. 4(C) occurs not when the arrest warrant was served but when the defendant was ordered returned by the court in which the charges were pending. Landrum v. State, (1981) Ind., 428 N.E.2d 1228. Thus Hinds was not arrested, and the one-year limit set by C.R. 4(C) did not begin to run, until February 2, 1981, when the Tippecanoe County Court first ordered his return.

The record shows Hinds filed his motion for discharge more than one year after his arrest. As the state points out, however, the time within which it was required to try Hinds was extended by any delays caused by Hinds. C.R. 4(C); Martin v. State, (1981) Ind.App., 419 N.E.2d 256. The trial on this charge was initially set for September 22, 1981. By agreement between Hinds and the state, however, trial was reset for January 5, 1982. This delay, totalling 105 days, was attributable to Hinds. State v. Tomes, (1984) Ind.App., 466 N.E.2d 66.

The state further seeks to charge Hinds with delays resulting from his motion for severance under IND.CODE 35-34-1-11 (1982). Hinds was originally charged, in a two-count information, with both the robbery at issue here and another robbery in Lafayette. Not wishing to defend against both of these counts in one trial, Hinds moved on December 23, 1981, to have them severed. The trial court granted this motion, and the state chose to try the other robbery count on the January 5 trial date set previously. On December 29, 1981, Hinds asked for, and was granted, a continuance of this trial date to April 20, 1982.

The state contends the delay caused by this continuance extended the C.R. 4(C) time limit for trying the charges at issue here. We disagree. Given that the instant charges were not to be litigated on the January 5 trial date, Hinds' continuance of that trial on the severed charges did not in any way delay his trial on the present charges. When the court grants a defendant's motion to sever two counts that have been joined for trial, the state may not thwart the defendant's speedy trial right by holding one count in abeyance until the other count has been disposed of. Rather, upon severance, it is the state's duty to pursue both of the severed counts so as to bring them to trial within the time limits set by C.R. 4. We accordingly hold that Hinds' continuance of the severed count did not cause any delay chargeable against him here.

We conclude that only 105 days of delay are chargeable to Hinds. This delay extended the time for trial under C.R. 4(C) to May 17, 1982. If the state had made no effort to try Hinds before this date, he would have been entitled to discharge. The record shows, however, that the state asked the court on April 20 to set this case for trial. At that time, Hinds and the state agreed to a trial on June 22, 1982. On June 7, 1982, the court ordered the case...

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