Ashley v. State

• Decision Date: 06 June 1986
• Docket Number: No. 784S261,784S261
• Citation: 493 N.E.2d 768
• Parties: Billy ASHLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 768

493 N.E.2d 768

Billy ASHLEY, Appellant, v. STATE of Indiana, Appellee.

No. 784S261.

Supreme Court of Indiana.

June 6, 1986.

William Janes, Michigan City, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Billy Ashley was convicted after a trial by jury of theft, a class D felony, Ind. Code Sec. 35-43-4-2 (Burns 1979 Repl.), and robbery, a class B felony, Ind. Code Sec. 35-42-5-1 (Burns 1979 Repl.), and was found to be an habitual offender, Ind. Code Sec. 35-50-2-8 (Burns 1979 Repl.). The trial judge sentenced Ashley to a term of twenty years imprisonment for the robbery, which was enhanced by thirty years by virtue of the habitual offender finding. The judge imposed a concurrent four-year sentence for the theft.

In this direct appeal, Ashley raises five issues:

1) Whether the State should have been foreclosed from presenting evidence that Ashley was at a place and time other than that stated in his alibi notice because it failed to respond to his alibi notice;

2) Whether the trial court erred in refusing to rearraign Ashley on an amended habitual offender charge;

3) Whether the trial court erred in admitting into evidence a briefcase and the documents contained in it;

4) Whether testimony concerning the content of a telephone call was admitted without an adequate foundation, and

5) Whether the trial court erred in admitting into evidence "mug shots" of Ashley and another individual.

We affirm.

These are the facts which support the judgment of the trial court. On the morning of June 8, 1982, two men and a woman entered a used car lot owned by Joe Burgess, located in Michigan City. Salesman Corky Walter approached the two men, one of whom identified himself as Carl Edmonds. The other man, who did not identify himself, expressed interest in purchasing the 1975 Cadillac which Edmonds had inspected a week earlier. After a brief discussion, the prospective buyer indicated that he was expecting an insurance check with which he would buy the vehicle. It was agreed that he would test drive the Cadillac and, while doing so, pick up the insurance check if it was available. Walter provided the keys, and the man and woman left in the Cadillac. Edmonds remained at the car lot.

Some time later, Walter received a telephone call explaining the delay in returning the vehicle. When Walter later received a second call offering similar explanations, he became suspicious and went to consult his boss. When he returned, Edmonds was gone.

Later that same day, Nancy Erikson was tending her family store, Erikson Jewelers, when a couple entered the store. The man indicated that he wished to purchase a gift for his mother. While Erikson made gift suggestions, her attention was drawn to the woman, who was removing items from display cases. When she turned back to the man, he pointed a gun at her and demanded the jewelry. Erikson complied, and emptied several display cases in the course of approximately fifteen minutes. The man continued to hold the gun on Erikson until the couple left.

Although Erikson pursued the couple into the parking lot, they had disappeared, and she was unable to observe the vehicle involved. When the police arrived, she identified Ashley from a photographic array. She later identified a more recent photograph of Ashley from a second array.

On June 16, 1982, a 1975 Cadillac was found abandoned in Racine, Wisconsin. The vehicle was traced through its serial number to Burgess Motors. When the car was returned, Walter, Burgess, and his son Steve opened the trunk and discovered a brief case containing documents bearing the name "Billy Ashley". They immediately contacted the police, who took custody of the brief case and its contents.

At trial, the brief case and its contents were admitted into evidence. Both Walter and Erikson identified Ashley as the perpetrator of the car theft and the jewel robbery. Though he had earlier filed a notice of alibi, Ashley did not present any evidence.

I. State's Failure to Respond to Alibi Notice

On February 8, 1983, Ashley filed a Notice of Intent to Offer Alibi, stating that "on the date of the alleged offenses as stated in the informations" he was in Kenosha, Wisconsin. At the same time, Ashley requested that the State respond with a specific statement of the exact place and time the offenses allegedly occurred. The State failed to provide such a response. At trial, the State offered evidence over appellant's objection that Ashley was present at the scenes of the crimes in Michigan City on June 8, 1982. This evidence was consistent with the place and time alleged in the information. Ashley argues that, because of the State's failure to respond to his alibi notice, the trial court erred by allowing the State to present evidence showing Ashley to be at a place other than Kenosha, Wisconsin, on June 8, 1982, as designated in his alibi notice.

Appellant correctly points out that at the time of the offenses and at the time Ashley was charged, sanctions for failure to comply with a request for a specific statement of time and place were provided by Ind. Code Sec. 35-5-1-3 (Burns 1979 Repl.). However, this section was repealed effective September 1, 1982. Acts 1981, P.L. 298, Secs. 9, 10(c), and recodified in Ind. Code Sec. 35-36-4-3 (Burns 1984 Supp.). This recodification is significant because it became effective after the offenses occurred and after the defendant was charged but before the defendant filed his alibi notice. The sanctions authorized by these code sections also differ: under the former code, the State's failure to respond to the alibi notice absent good cause resulted in the exclusion of evidence showing the defendant to be at a place and time other than that stated in his alibi notice; under the recodification, a failure to comply absent good cause results in the exclusion of evidence showing the defendant to be at a place and time different from that stated in the information or indictment. The application of the proper statute is therefore pivotal to deciding this issue.

The legislature specified that repeal of the prior code section would not affect any rights which accrued before September 1, 1982. Acts 1981 P.L. 298 Sec. 9(b). In this case, the crimes occurred on June 8, 1982, and Ashley was charged on July 2, 1982. However, a defendant's right to exclusion of evidence of time and place arises upon his compliance with his duties under the alibi statute. Ind. Code 35-5-1-1 (Burns 1979 Repl.) (repealed and recodified by Ind. Code 35-36-4-1) (Burns 1984 Supp.); Dew v. State (1981), 275 Ind., 304, 307, 416 N.E.2d 1245, 1246. We therefore look to the date of Ashley's compliance with the alibi notice provisions of the statute to determine which code provision applies. We find that Ashley's right to exclusion of evidence of time and place accrued upon his compliance by filing a notice of alibi on February 8, 1983, and that the applicable sanction for the State's failure to respond is provided by the recodified statute, Ind. Code Sec. 35-36-4-3. See: Williams v. State (1985), Ind., 478 N.E.2d 47 (Ind. Code Sec. 35-36-4-1 (Burns 1984 Supp.), a recodification providing procedure for alibi notice, also effective September 1, 1982, applied where offense occurred September 2, 1981, crime charged September 11, 1981, and alibi notice filed November 11, 1982). As the appropriate sanction is exclusion of evidence showing defendant to be at a time and place different from that stated in the information or indictment, no error occurred when the state presented evidence showing the defendant to be at a place and time consistent with the charging information.

II. Rearraignment on Habitual Offender Charge

The original charges against Ashley, filed on June 8, 1982, alleged that Ashley was an habitual offender by virtue of prior unrelated felony convictions for armed robbery in October 1977 and delivery of a controlled substance in February 1975. On September 3, 1982, Ashley waived formal arraignment and entered a plea of not guilty to all counts. The habitual offender information was amended four times prior to trial. The final amendment, filed on September 9, 1983, alleged that Ashley had been previously convicted of the prior unrelated felonies of robbery in December 1977, commission of a felony while armed in October 1977, delivery of a controlled substance in April, 1975, and robbery in May 1967. Substantially the same offenses had been alleged in previous amendments, varying only according to the date of prior convictions.

On the morning of trial, Ashley requested rearraignment on the amended habitual offender count. The judge denied this request and proceeded with the trial, over defendant's objection. Ashley alleges that the trial court erred by refusing to rearraign him on the amended habitual offender charge.

Appellant correctly notes that habitual offender allegations must be charged in the same manner as a criminal offense, Sears v. State (1983), Ind., 456 N.E.2d 390, 393, and "must contain all of the procedural matters and safeguards of the original underlying charges." Griffin v. State (1982), Ind., 439 N.E.2d 160, 165. Arraignment is one of the procedural safeguards required for habitual offender allegations. Id. at 164.

The purpose of arraignment is to give notice to the accused of the charges against him and to permit him to enter a plea to those charges. Walker v. State (1983), Ind., 444 N.E.2d 842, 844. While arraignment is the appropriate procedure for habitual offender charges, failure to arraign is not grounds for reversal absent any prejudice which results. Edwards v. State (1985), Ind., 479 N.E.2d 541, 548.

The trial court's denial of Ashley's request for rearraignment did not result in any discernable prejudice. Ashley had been aware of the habitual offender charges for over a year and had been informed ten days before trial of the specific prior...