Battle v. State, No. 180S13

Docket NºNo. 180S13
Citation275 Ind. 70, 415 N.E.2d 39
Case DateJanuary 19, 1981
CourtSupreme Court of Indiana

Page 39

415 N.E.2d 39
275 Ind. 70
Richard Earl BATTLE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 180S13.
Supreme Court of Indiana.
Jan. 19, 1981.

[275 Ind. 71]

Page 40

Nick J. Thiros, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Richard Earl Battle, was convicted by a jury of felony-murder, Ind. Code § 35-13-4-1 (Burns 1975), and conspiracy to commit robbery, Ind. Code § 35-1-111-1 (Burns 1975). He was sentenced to terms of fifteen to twenty-five years and two to fourteen years to be served concurrently. His direct appeal raises the following issues:

[275 Ind. 72] 1. Whether the trial court erred in denying defendant's pretrial motions for discharge;

2. Whether the trial court erred in denying defendant's pretrial motion to suppress and in admitting defendant's confession into evidence; and

3. Whether the trial court erred in refusing to give one of the defendant's tendered instructions and giving instead one of the state's final instructions.

A summary of the facts most favorable to the state and necessary for a consideration of the above issues shows that the victim, Alvin Jackson, was shot and killed while leaving a liquor store in Gary, Indiana, in the early morning hours of March 14, 1975. An employee of the liquor store, Alberta Redmon, was abducted at this time in the victim's automobile, taken to another location and sexually assaulted. Defendant was charged with three others with the murder and robbery of Jackson and was positively identified by Redmon as one of the participants.

Page 41

I.

Defendant first contends that he was entitled to discharge on both counts under Ind.R.Crim.P. 4(A) and 4(C). He argues that he was held in jail without a trial longer than the six-month period allowed under subsection 4(A) and that he was not brought to trial within the one-year period contemplated under subsection 4(C).

We will first deal with Ind.R.Crim.P. 4(A). As we have clearly stated in the past, the language of this rule requires release after the six-month period and not a discharge. The rule does not preclude prosecution unless there is a violation of the one-year limitation of Ind.R.Crim.P. 4(C). Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750; Lewis v. State, (1976) 264 Ind. 288, 342 N.E.2d 859. Since the period when defendant would have been entitled to be released has expired, any alleged violation of subsection (A) raises no question for review on this appeal.

Defendant also alleges a violation of the one-year limitation in subsection 4(C). The charges in this case were originally filed on March 19, [275 Ind. 73] 1975. However, defendant agrees that there was a period of three years with several delays chargeable to him. During this time, motions of incompetency were filed, a period of commitment to the Indiana Department of Mental Health was served, and finally a written plea agreement was executed from which a petition for post-conviction relief was filed. Both parties agree that the starting point for evaluating the time period is February 16, 1978, the date on which the trial court granted post-conviction relief and ordered a new trial. Defendant was not brought to trial after this until April 6, 1979, and contends that this period of almost fourteen months violates subsection 4(C).

We find no merit to this argument since defendant's own actions were the cause of considerable delay during this time. Defendant filed a motion to suppress on June 12, 1978. He requested a continuance on July 24, 1978, in order to further prepare for the evidentiary hearing which had been scheduled on this motion. The continuance lasted until August 15, 1978. At that time, there was an extensive evidentiary hearing on the motion to suppress which could not be completed in one day. Further hearings on this motion were held in September, November, and December. The motion to suppress was overruled on February 13, 1979, and the case was then set for trial.

The record shows that the interim continuances during the evidentiary hearings on the motion to suppress were granted on the trial court's motions due to a congested court calender or as a result of defense counsel's other trial commitments. These delays were clearly the result of defendant's actions in filing his motion to suppress and requesting full evidentiary hearings on it prior to trial. As stated by the rule, the time limitations therein shall be extended by the period of any delay caused by defendant's acts. Ind.R.Crim.P. 4(F). Bradberry v. State, (1977) 266 Ind. 530, 364 N.E.2d 1183; Gross v. State, (1972) 258 Ind. 46, 278 N.E.2d 583. Therefore, since several months of the delay were attributable to defendant, there was no violation of Ind.R.Crim.P. 4(C), and the motions for discharge were properly overruled.

Defendant further argues that count II had been pending since its initial filing on March 19, 1975, in violation of both subsections 4(A) and 4(C). There is no merit to this contention since any delays which [275 Ind. 74] affect count I also affect this count, even though this count was dismissed as part of the plea bargain agreement accepted by the trial court in April, 1977. The count was refiled when the new trial was granted on February 16, 1978. The delays prior to the filing of the written plea bargain agreement were attributable to defendant's actions in filing a motion of incompetency to stand trial. Delays...

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45 practice notes
  • Curley v. State, No. 35
    • United States
    • Court of Appeals of Maryland
    • 3 Mayo 1984
    ...Compare Georgia Code Ann. § 17-7-170 with § 17-7-171. 12 With regard to the Indiana procedure, see also Ind.R.Crim.P. 4; Battle v. State, 415 N.E.2d 39, 41 (Ind.1981); Collins v. State, 266 Ind. 430, 364 N.E.2d 750, 755 (1977); State v. Johnson Circuit Court of Johnson County, 234 Ind. 429,......
  • Bates v. City of Ft. Wayne, Ind., No. F 79-173
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 19 Diciembre 1983
    ...Indiana follows the definition stated above of probable cause. Fyock v. State, 436 N.E.2d 1089, 1093 (Ind.1982); Battle v. State, 415 N.E.2d 39 (Ind.1981); Strosnider v. State, 422 N.E.2d 1325 (Ind.App. 1981). Further, Indiana also follows the rule that probable cause is "determined 59......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1984
    ...the defendant had committed the criminal act in question. Fyock v. State, (1982) Ind., 436 N.E.2d 1089; Battle v. State, (1981) Ind., 415 N.E.2d 39; Taylor v. State, (1980) 273 Ind. 558, 406 N.E.2d 247; Benton v. State, (1980) 273 Ind. 34, 401 N.E.2d 697. Averhart's claim seems to be that i......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Octubre 1988
    ...a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise. Battle v. State (1981), Ind. , 415 N.E.2d 39. Grossenbacher v. State (1984), Ind., 468 N.E.2d 1056, 1059. Final instructions 19 and 20 satisfy this standard. Neither instruction contains ......
  • Request a trial to view additional results
45 cases
  • Curley v. State, No. 35
    • United States
    • Court of Appeals of Maryland
    • 3 Mayo 1984
    ...Compare Georgia Code Ann. § 17-7-170 with § 17-7-171. 12 With regard to the Indiana procedure, see also Ind.R.Crim.P. 4; Battle v. State, 415 N.E.2d 39, 41 (Ind.1981); Collins v. State, 266 Ind. 430, 364 N.E.2d 750, 755 (1977); State v. Johnson Circuit Court of Johnson County, 234 Ind. 429,......
  • Bates v. City of Ft. Wayne, Ind., No. F 79-173
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 19 Diciembre 1983
    ...Indiana follows the definition stated above of probable cause. Fyock v. State, 436 N.E.2d 1089, 1093 (Ind.1982); Battle v. State, 415 N.E.2d 39 (Ind.1981); Strosnider v. State, 422 N.E.2d 1325 (Ind.App. 1981). Further, Indiana also follows the rule that probable cause is "determined 59......
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1984
    ...the defendant had committed the criminal act in question. Fyock v. State, (1982) Ind., 436 N.E.2d 1089; Battle v. State, (1981) Ind., 415 N.E.2d 39; Taylor v. State, (1980) 273 Ind. 558, 406 N.E.2d 247; Benton v. State, (1980) 273 Ind. 34, 401 N.E.2d 697. Averhart's claim seems to be that i......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Octubre 1988
    ...a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise. Battle v. State (1981), Ind. , 415 N.E.2d 39. Grossenbacher v. State (1984), Ind., 468 N.E.2d 1056, 1059. Final instructions 19 and 20 satisfy this standard. Neither instruction contains ......
  • Request a trial to view additional results

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