Bobbitt v. State, 176S27

Citation266 Ind. 164,361 N.E.2d 1193
Decision Date15 April 1977
Docket NumberNo. 176S27,176S27
PartiesGrady Thomas BOBBITT, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

David B. Weisman, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Grady Thomas Bobbitt, was convicted on February 26, 1975, of commission of a felony (robbery) while armed and infliction of injury during the commission of a robbery. The Appellant was sentenced by his jury to imprisonment for eighteen years for the armed robbery conviction. Ind.Code § 35--12--1--1 (Burns 1975). Pursuant to statute, the Appellant was sentenced to life imprisonment for the infliction of injury conviction. Ind.Code § 35--13--4--6 (Burns 1975). Judgment by the trial court on August 19, 1975, made these sentences consecutive. The Appellant's motion to correct errors was filed on October 16, 1975. This appeal is taken from the denial of that motion on November 6, 1975.

The evidence at trial revealed that at 2:00 to 2:30 p.m. on August 31, 1973, two black men entered Gerard's Pharmacy in South Bend, Indiana. One man wore a dark blue shirt and carried a gun and a tan canvas bag. The other man wore a nylon stocking mask over his head. An employee of the pharmacy was made to lie on the floor as money was taken from the cash register. A woman customer, held by the blue-shirted robber while the cash register was being emptied, was struck on the head and shot in the arm during the course of the robbery.

Approximately one block from the pharmacy, Joyce Gresgorek saw an automobile hit a telephone pole in front of her house. Two black men ran toward the car from the direction of the pharmacy and jumped in the back seat. One man carried what appeared to be a white sack. A description of the automobile to police led officers to the automobile of a South Bend youth. Police arrested the Appellant and four companions near the car. A nylon mask was found in the car. A large amount of change and currency rolled with robber bands was found on the person of the Appellant. Witnesses to the crime identified the Appellant as the robber wearing the dark blue shirt.

I. Sentencing

The Appellant presents five separate issues regarding his sentencing:

1. Whether the trial court erred in denying a defense motion for a bifurcated trial of the armed robbery charge, divided into guilt-determination and sentencing phases.

2. Whether the trial court erred in failing to consider a pre-sentence report before imposing sentence on the armed robbery charge.

3. Whether the trial court abused its discretion by imposing consecutive sentences on the Appellant's convictions.

4. Whether the trial court erred in imposing sentence on both counts.

5. Whether the trial court erred in granting a prosecution motion in limine which kept from the jury the sentence imposed on one Terry Laster for his involvement in the robbery.

The Appellant's contention that the trial court erred in sentencing the Appellant on both armed robbery and inflicting injury in the course of a robbery is correct. In Swininger v. State, (1976) Ind., 352 N.E.2d 473, this court held that a charge of armed robbery is embodied in the infliction of injury charge and that conviction upon the latter charge would act as a bar to subsequent prosecution for armed robbery. That decision also recognized this error to be 'fundamental error' which will be reviewed by this Court even in the absence of proper objection at trial. A sentence should not have been imposed upon the Appellant's armed robbery conviction. That sentence must be vacated.

Because the Appellant's armed robbery sentence must be vacated, the other four issues presented here relating to sentencing are rendered moot. There is no question of multiple sentences to run consecutively or concurrently. And, since the jury plays no role in sentencing for a conviction for inflicting injury in the course of a robbery, the questions of whether it should do so through a bifurcated proceeding, with benefit of a pre-sentence report, or with knowledge of the sentences imposed on confederates, do not arise.

II. Sufficiency of Evidence Regarding Armed Robbery

The Appellant presents two issues relating solely to the Appellant's armed robbery conviction. The crime of commission of or attempt to commit a felony while armed has as one of its elements that the person accused is over sixteen years of age. Ind.Code § 35--12--1--1 (Burns 1975). It is contended that the trial court erred in admitting into evidence hearsay testimony regarding the Appellant's age, and that the evidence was otherwise insufficient to support the armed robbery conviction.

The testimony in question was given by a police officer. He stated that during the course of his investigation he learned that the Appellant was eighteen on the day of the crime charged. He testified further that the Appellant's mother signed a brief statement that the Appellant's date of birth was '7--6--54.' Also admitted into evidence, however, was testimony regarding the Appellant's age by two other witnesses.

A fellow employee at the Appellant's place of employment testified that the Appellant was 'approximately 17, 18' when he came to South Bend. The witness was a foreman who had known the Appellant six or eight months. This testimony was elicited by the defense on cross-examination and was not objected to by defense counsel. One of the eye witnesses to the crimes charged testified that the person who opened the cash register was 'maybe 17, 18 years old.' The admissibility of this testimony is not challenged in this appeal.

Even if the testimony of the police officer is inadmissible for reasons of a lack of proper foundation and hearsay, as the Appellant suggests, the other evidence that the Appellant was over the age of 16 was sufficient. 'This Court has held that evidence of age can be established by a witness giving his observation of the appellant as to his age. Watson v. State, (1956) 236 Ind. 329, 334, 140 N.E.2d 109.' Asocar v. State, (1969) 252 Ind. 326 at 328, 247 N.E.2d 679 at 680; Kautzman v. State, (1974) Ind.App., 316 N.E.2d 857. The testimony by the Appellant's co-worker and the eye-witness to the crime sufficiently establish the age of the accused as over 16. The admission of the objected to testimony was harmless error, if error at all.

III. Competency to Stand Trial

Prior to trial, defense counsel filed a motion for determination of competency of the defendant to stand trial, based in part on the Appellant's refusal to heed the advice of his attorneys in this case and another charge then pending and his apparent disinterest in cooperating in the preparation of his defense in those cases. Pursuant to statute, two psychiatrists and another physician were appointed by the trial court to examine the Appellant and report on his competency to stand trial. Ind.Code § 35--5--3.1--1 (Burns 1975). A hearing on the question was subsequently held. The Appellant contends that the trial court erred in determining that the Appellant was competent to stand trial.

The Appellant acknowledges that the reports of the physicians who examined him conflicted in their conclusions. This court generally will not overturn such a factual determination in the face of conflicting evidence. See Vacendak v. State, (1976) Ind., 340 N.E.2d 352. Moreover, the Appellant has failed to present this court with a record which permits review of that determination. Neither the reports of the examining physicians nor any testimony or argument of the competency hearing are included in the record. We cannot consider an allegation of error when there is nothing in the record to support it. Schuman v. State, (1976) Ind., 357 N.E.2d 895; State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d 70.

IV. Insanity Defense

The Appellant challenges the sufficiency of the evidence in support of the jury's determination that the Appellant was legally sane at the time of the crime charged. This contention is based in part on the proposition that much of the evidence supporting that determination was improper.

The first such evidence cited by the Appellant are lay opinions regarding the ability of the Appellant to appreciate the wrongfulness of his conduct. Five witnesses are presented in the Appellant's argument as improperly giving such opinions:

1. Kevin Masters, a pharmacy employee and one of the victims of the robbery;

2. Marlene Robinson, the woman customer who was shot in the course of the robbery;

3. Charles Mahank, a police officer who participated in the arrest of the Appellant;

4. Glenn Terry, another policeman who observed the Appellant during his arrest;

5. Ernest Howard Comer, a foreman at the Appellant's place of employment who had known the Appellant for six to eight months preceding the robbery.

The Appellant contends that the opinions expressed by these witnesses were not supported by a sufficient factual basis. '(W)e have held that it is sufficient for the layman to state that he saw and spoke upon one occasion with the person concerning whose sanity he is giving an opinion.' Baum v. State, (1976) Ind., 245 N.E.2d 831 at 834. This is directly applicable to Officer Mahank, who stated that he spoke with the Appellant when he was arrested. Regarding the other witnesses, we think it was enough for them to state (as they did) that they observed the accused during the course of the crime charged, during his period of post-arrest confinement at the police station, or during a designated period of employment, and based their opinions on those observations.

The Appellant's attack on the opinions admitted into evidence here primarily address the weight they should be given. See Baum v. State, supra. This is a proper line of argument to put before a jury, as the Appellant's counsel effectively did during his cross-examination of the witnesses in question. The admission of...

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