Akins v. State

Decision Date22 December 1981
Docket NumberNo. 580S127,580S127
Citation429 N.E.2d 232
PartiesMichael AKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Charles L. Berger, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of murder, Ind.Code § 35-42-1-1 (Burns 1979) and was sentenced to a term of thirty (30) years imprisonment. This direct appeal seeks review upon the following issues:

(1) Whether the trial court erred in granting continuances, upon the State's motions, for unavailability of a witness who had not been named upon the information.

(2) Whether the trial court erred in denying Defendant's motion for discharge for delay in bringing him to trial.

(3) Whether the trial court erred in admitting autopsy photographs into evidence.

(4) Whether the trial court erred in admitting into evidence a published ballistics article and accompanying testimony of the State's ballistics expert, over the defendant's objection of hearsay.

(5) Whether the trial court erred in admitting evidence of certain statements attributed to the decedent, over Defendant's objection of hearsay.

(6) Whether the trial court erred in admitting certain physical evidence taken from the defendant at the time of his arrest, over his objection that his warrantless arrest had been unlawful as unsupported by probable cause.

(7) Whether the trial court erred in admitting into evidence tape recordings and written statements and transcriptions over Defendant's objection of hearsay.

(8) Whether Defendant was entitled to a new trial upon discovery that a State's witness had been determined to be incompetent to stand trial upon an unrelated charge.

(9) Whether the trial court erred in refusing to give Defendant's tendered instruction advising that it was the duty of the jury to reconcile all the evidence with the presumption of his innocence, if possible and to resolve doubts in his favor.

(10) Whether the guilty verdict was sustained by the evidence.

ISSUE I

Defendant contends that the trial court erred in granting two motions by the State for continuance, both of which were premised upon the unavailability of a material witness. It is his position, in this appeal, that the name of the witness, Mildred Southward, had not been endorsed upon the information and that Ind.Code § 35-3.1-1- Defendant was arraigned on March 2, 1979. He expressly waived his right to a "speedy trial", and the matter was set for trial for June 18, 1979. On June 8, the State filed a written motion for a continuance, because of the unavailability of Southward, and it was granted on June 15, 1979. The defendant objected to the grant of such continuance, not by reason of the statutory proscription but, rather, upon the contention that Southward was not a material witness and that the testimony to be anticipated from her was available from other witnesses. The issue which the defendant here seeks to present, therefore, is not available for review. Phelan v. State, (1980) Ind., 406 N.E.2d 237, 239; Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156.

2(c), therefore proscribes the grant of a continuance for the State.

Upon granting the State's aforementioned motion for a continuance, the court set the trial for July 9, 1979, but on that date the judge, sua sponte, re-set the trial for July 23rd, because of the death of his father.

On July 13, 1979, the State again filed a motion for a continuance, because of the unavailability of Southward, who was in the hospital and was to undergo major surgery during the week of July 23rd. On this occasion, Defendant protested the grant of a further continuance upon the same grounds urged in this appeal, i.e., Ind.Code § 35-3.1-1-2(c), which is as follows:

"An Indictment, or information, shall have stated upon it the names of all the material witnesses. Other witnesses may afterwards be subpoenaed by the state, but unless the name of a witness be stated on the indictment or information at the time it is filed, no continuance shall be granted to the state on account of the absence of such witness."

Assuming that it was error for the trial court to grant the continuance, in view of the statute, it does not necessarily follow that a reversal is required. Although a continuance under such circumstances is proscribed, the statute makes no provision for sanctions per se. The purpose of the statute is to compel compliance with witness disclosure requirements, and the statute is, itself, a provision for sanctions for failure to disclose. The action appropriate for an appellate court when, as here, the trial court has refused to impose the sanction must be determined in context.

The defendant was taken into custody on January 28, 1979 and charged on February 2nd. On July 19th, the State filed a supplement to its July 13th motion and therein alleged that Defendant had known of the name, address and anticipated testimony of the witness since March 2nd. Although he has not, by his brief, acknowledged the correctness of the self-serving allegation, neither has he disputed the State's allegation of such information set forth in its answer brief. In any event, it cannot be disputed that the defendant was fully informed concerning the witness and the anticipated testimony from and after June 12th, when he filed his written objections to the State's first motion for a continuance. The trial did not commence until October 1, 1979, hence Defendant had not less than three and one-half months notice and could not have been substantially harmed by the State's omission of the witness' name from the information.

ISSUE II

Defendant also assigns as error the denial of his motion for discharge, under Ind.Rules Cr.P. 4, by reason of the delay in bringing him to trial. He premises his entitlement to discharge upon both a detention in jail, without trial, for a period in excess of six (6) months from the filing of charges and upon a delay in excess of seventy (70) days in bringing him to trial following his filing of a motion for an early trial.

Criminal Rule 4(A) makes provision only for the release of the accused upon his own recognizance for a delay in excess of six (6) months in bringing him to trial. It does not provide for discharge.

Criminal Rule 4(B)(1) does provide for discharge for delay in excess of seventy We note that the trial did not commence until October 1, 1979, and the record is not clear with respect to other trial date settings and continuances. However, the error assigned with respect to Criminal Rule 4 is addressed to the trial court's action in overruling the motion for discharge filed on August 21st. It does not appear that there is any issue with respect to delays that occurred subsequent to the filing of that motion. We also note that on August 20th, the parties agreed to the vacating of a September 10th trial date and a trial setting of October 1st. On this state of the record, we find no error.

(70) days from the date of filing a motion for an early trial. However, there was no such delay here. It is Defendant's claim that he made his early trial motion on June 8, 1979, but the record does not bear him out. The record of June 8th is as follows: "The defendant indicated he will file a motion effective this date withdrawing waiver of speedy trial; * * *." We presume this was an expression of an intention to withdraw the waiver, previously mentioned herein, voiced at the arraignment. However, we have no way of knowing which of the provisions of Criminal Rule 4 he had waived. Assuming that the initial waiver was of his right to file a motion for an early trial, its withdrawal, at the most, would only have reinstated his right to file such motion. It would not have eliminated the necessity for affirmative action on his part to commence the running of the time limitation. The motion was filed on July 20th, and the seventy (70) day period expired on August 29th, rather than on August 17th, as contended, and Defendant's motion for discharge filed on August 21, 1979 was properly overruled.

ISSUE III

Seven autopsy photographs were admitted into evidence over objection that they would inflame the minds of the jury and that they were repetitious.

The photographs in question are unpleasant to view as they depict the nature and extent of wounds of the decedent immediately following her murder. But they were not rendered inadmissible solely on the basis that they were gruesome and repetitious. Brandon v. State, (1978) 268 Ind. 150, 374 N.E.2d 504. The photographs evidenced the cause of death and that the decedent had sustained numerous wounds. The defendant, did not demonstrate that these photographs would inflame the passions of the jury. Without an imbalance between this relevance and a clear showing of a tendency to influence the jury improperly, the trial court's determination will not be disturbed. Bates v. State, (1978) 267 Ind. 8, 366 N.E.2d 659, 660.

ISSUE IV

Defendant contends that the court improperly admitted, over his objection of "hearsay," State's Exhibit No. 67 and the testimony of John Althoff, which testimony, he asserts, was dependent upon the exhibit. Althoff was a member of the Evansville Police Crime Scene Technical Unit and was offered by the State as a ballistics' expert. Apparently, the conclusions drawn by him were, in part at least, dependent upon the content of Exhibit No. 67, which was an article entitled "Identification of .22 caliber Rimfire Ammunition Suitable for Gunshot Residue Determination" and had been taken from a police laboratory periodical. It appears from the meager information given to us that the court erred. However, we have not been apprised of the content of Althoff's testimony or the content of the exhibit. If prejudicial error had occurred, it has not been presented by Defendant's brief. Before an appellant is entitled to a...

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