Bowens v. State, 784

Decision Date19 August 1985
Docket NumberNo. 784,784
Citation481 N.E.2d 1289
PartiesLorenzo BOWENS, Appellant, v. STATE of Indiana, Plaintiff-Appellee, S 262.
CourtIndiana Supreme Court

Donald R. Black, Merrillville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

PIVARNIK, Justice.

Defendant-Appellant Lorenzo Bowens was found guilty by a jury in the Lake Superior Court of class A felony attempted robbery and the trial court subsequently sentenced him to twenty years imprisonment. Defendant now directly appeals and raises the following five issues:

1. denial of Defendant's Motion for Dismissal and Immediate Release pursuant to Ind.R.Crim.P. 4; 2. trial court's alleged refusal to permit Defendant to move to strike;

3. alleged improper testimony of Charles Hall, a victim;

4. alleged violation of Motion to Separate Witnesses; and

5. alleged improper testimony of witness Gonzales.

The facts adduced during trial tend to show that on July 1, 1983, DeEtter Hall and her husband, Charles, were working at Scotty's Gas Stop in Lake County, Indiana. DeEtter was in the back room while Charles was working the rest of the gas station. Around 10:45 p.m., Defendant entered the station and asked to purchase cigarettes from Charles. After Defendant paid for the cigarettes, he backed away as if to leave and then drew a gun on Charles, announcing a "stick-up." When DeEtter witnessed the incident from the backroom she quickly closed the door. An accomplice of the defendant rushed into the station and held a gun to Charles' head while Defendant went to the back of the station and broke open the door to the backroom, pointing his gun at DeEtter's head. Both victims struggled with their respective attackers. In the ensuing struggle between DeEtter and Defendant, three shots were fired from Defendant's gun including one which wounded Defendant in the upper torso. Charles Hall was struck in the forehead with the second man's gun during his struggle before the second man fled the scene. Defendant claimed he was the only one in the station and that he had no intent to rob the Halls. He said an altercation arose when the Halls shortchanged him and that they produced the gun that resulted in the above shootings.

I

Defendant first alleges the trial court erred by failing to set the trial date within the required time pursuant to Ind.R.Crim.P. 4(A). This rule provides that a defendant be released on his own recognizance if not brought to trial within six months of the date the criminal charge against the defendant is filed or of the date of the defendant's arrest, whichever is later. The rule further provides that the defendant remain subject to prosecution for one year. The record shows that Defendant's trial was set for a period beyond the six months deadline but Defendant made no objection at the setting of said trial date. Further, Defendant did not raise this issue in his Motion to Correct Errors. The failure to complain of alleged errors at trial in a timely fashion results in waiver of the issue. Randall v. State, (1985) Ind., 474 N.E.2d 76, reh. denied. Moreover, this Court has held that any issue not assigned as error in Defendant's Motion to Correct Errors is waived. Ballard v. State, (1982) Ind., 438 N.E.2d 707. We also note that this issue is now moot. If Defendant lost any rights, as he now complains, it was the right to be released on bond because of his incarceration for a period of six months. Defendant still remained subject to prosecution, however, and since he was tried and convicted within the statutory one year period, the issue is now moot and beyond appellate review.

II

Conflict arose with reference to the dress that DeEtter Hall wore during the crime and wore again during the trial. There were marks and stains on the dress which apparently DeEtter Hall felt were gunpowder burns. Prior to trial the trial judge granted Defendant's motion in limine to prevent DeEtter from testifying that the stains were, in fact, gunpowder burns since she was not a chemist or an expert witness on the subject. During DeEtter's testimony, however, she made reference to gunpowder burns on her dress and defense counsel objected on the grounds of her incompetency. The trial court sustained the objection and defense counsel then asked permission to approach the bench to which the trial court answered: "No." Defendant now claims the trial judge erred in that his refusal to permit defense counsel to approach the bench prevented Defendant from making the warranted motion to strike and admonish and the necessary motion for mistrial. Defense counsel made no attempt to make such motions from counsel table, however, and there was no indication of what defense counsel intended to do had he been allowed to approach the bench. There is, of course, no requirement that motions be made at the bench and Defendant has shown no threat of prejudice that would have made a bench approach necessary. Moreover, Defendant has not shown that he was impeded in any manner from making the motions from the counsel's table. There is, therefore, no error shown that merits reversal on this issue.

Defendant further claims there was error in that the deputy prosecutor made reference to powder burns on DeEtter Hall's dress during his cross-examination of Defendant. The record shows, however, that no objection was made at the time and thus this issue has been waived. Suggs v. State, (1981) Ind., 428 N.E.2d 226, reh. denied (1982).

III

Defendant also contends that the testimony of State's witness Charles Hall was inadmissible because Hall could not identify him. Charles Hall referred to the perpetrators as the "first man" and the "second man" when he testified about the events in which he and his wife were attacked and robbed. There was, however, abundant evidence connecting Charles Hall's testimony to the crime and to Defendant. Hall's...

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12 cases
  • Thompson v. State
    • United States
    • Indiana Supreme Court
    • April 25, 1986
    ...any other criminal appeal: in order to preserve error for appellate review Defendant must make proper trial objections. Bowens v. State (1985), Ind., 481 N.E.2d 1289; Tabor v. State (1984), Ind., 461 N.E.2d 118. Defendant must raise the alleged error specifically in the motion to correct er......
  • House v. State
    • United States
    • Indiana Supreme Court
    • March 2, 1989
    ...that to the police? A. Yes I did. The record reveals no objection or other challenge to the line of questioning. Bowens v. State (1985), Ind., 481 N.E.2d 1289, 1290. Had an objection been made during the bench conference, House should have corrected any deficiency in the record according to......
  • Maez v. State
    • United States
    • Indiana Appellate Court
    • December 1, 1988
    ...counsel did not object to the court conducting the trial in absentia and this constitutes a waiver of the issue, citing Bowens v. State (1985), Ind., 481 N.E.2d 1289. The State also points out that Maez concedes in his brief that the current status of the law on this issue in Indiana does n......
  • Mills v. State
    • United States
    • Indiana Supreme Court
    • September 10, 1987
    ...object at the omnibus hearing on December 8, 1983, when the court set the trial beyond the period provided in the rule. Bowens v. State (1985), Ind., 481 N.E.2d 1289. Even if the issue was not waived, Mills lost only the right to be released until trial. He concedes the appropriate motion w......
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