Bradberry v. State
| Decision Date | 04 June 1975 |
| Docket Number | No. 2--1073A229,2--1073A229 |
| Citation | 328 N.E.2d 472,164 Ind.App. 360 |
| Parties | Martin BRADBERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
George T. Popcheff, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.
Before SULLIVAN, P.J., and BUCHANAN and WHITE, JJ.
Martin Bradberry, defendant, is appealing his conviction of commission of a felony (robbery) while armed, 1 for which he was sentenced to a determinate period of ten years in the Indiana Department of Correction.
We affirm.
The facts viewed most favorably to the State reveal that on May 29, 1972 at approximately 3:00 in the afternoon Officer Austin Zachary was traveling south on State Road 37 in Marion County in an unmarked police vehicle. At this time Zachary passed an individual driving a state-owned tractor also heading southward on State Road 37. Zachary testified that he decided to investigate since he felt it was rather late in the day for a highway crew to begin moving operations at a new location. Zachary turned his vehicle around and stopped the individual who was now heading west on Thompson Road. After questioning the driver of the tractor, who identified himself as Wayne Martin, Zachary called Trooper Dwight Wilson for assistance.
Resuming his conversation with 'Martin,' Zachary then noticed a truck pulled off the road ahead with a second individual standing nearby. Zachary momentarily left 'Martin' and proceeded to question the driver of the truck who identified himself as Harold Smith. 'Martin', who had followed Zachary to the truck, then brandished a .22 pistol and forced Zachary to relinquish his police revolver.
After watching 'Martin' and Smith fail in their attempt to load the tractor onto the truck, Zachary suggested that a wrecker might be available at a Texaco Station just north of Interstate 465. As Zachary and the two individuals accompanying him in his police car pulled into the Texaco Station, Officer Wilson approached from the other direction. After a short conversation, Zachary 'bailed out' of his vehicle and yelled to Officer Wilson that the two men in his car were armed. Although Zachary was able to scramble away, Officer Wilson was immediately relieved of his police revolver and the two individuals then effectuated an escape in the commandeered marked and unmarked police cars.
That night, Zachary identified pictures of Smith and Bradberry as his two assailants. The pictures were introduced into evidence without objection.
On July 3, 1972, Smith and Martin Bradberry were stopped by the Louisiana State Police for speeding. A routine computer check of Smith's license revealed that he was a fugitive from Indiana. Both men were arrested and later extradited to Indiana to stand trial.
On June 2, 1972, defendant was charged by affidavit with commission of a felony while armed, to-wit: Robbery, (Count I), and Kidnapping, (Count II). Trial was held before a jury on April 2, 1973. Defendant was found guilty of Count I and acquitted of the kidnapping charge. (Count II)
The following issues have been preserved on appeal: 2
I. Whether defendant's motion to dismiss should have been granted since the requested transcript of the probable cause hearing was unavailable and since the extradition papers were not introduced into evidence.
II. Whether the trial court abused its discretion by denying defendant's motion for a change of venue;
III. Whether the court abused its discretion by denying defendant's motion for a continuance due to the State's presentation of two additional witnesses who were not on the original witness list;
IV. Whether the court abused its discretion by denying defendant's motion for a mistrial; and,
V. Whether the evidence was sufficient to support the conviction of commission of a felony while armed, to-wit: Robbery.
I. Defendant first contends that his motion to dismiss should have been granted since he requested a transcript of the probable cause hearing but, due to a defect in the recording machine, the transcript was unavailable. Insofar as defendant has failed to present any authority to this portion of Issue I, it is deemed waived. AP. 8.3(A)(7).
It is further contended in Issue I that the State lacked jurisdiction over defendant since the extradition papers were not filed with the trial court.
Jurisdiction of this particular case was conferred by the filing of the affidavit. Treadwell v. State (1972), Ind.App., 283 N.E.2d 397, 401. Since defendant has not attacked the sufficiency or legality of the charging affidavit, he cannot now claim that the trial court lacked jurisdiction to hear this matter.
Defendant's assertion that failure of the State to file the extradition papers deprived the court of personal jurisdiction is untenable. As stated in Treadwell, supra, p. 401::
'The fact that defendant is present in court is sufficient to give the court criminal jurisdiction of his person and how he got there has no bearing on jurisdiction although it may have other consequences.'
Dickens v. State (1970), 254 Ind. 388, 260 N.E.2d 578. See also: Frisbie v. Collins (1952), 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; United States v. Sherwood (10th Cir., 1970) 435 F.2d 867; 22 C.J.S. Criminal Law § 146, p. 391.
II. Defendant next contends that since he could not have been afforded a fair and impartial trial in Marion County, he should have had his motion for change of venue granted. Denial of said motion, it is argued, constitutes an abuse of discretion on the part of the trial court.
Indiana Rules of Criminal Procedure, CR. 12, provides in pertinent part that,
'Upon the filing of a properly verified application, a change of venue from the county shall be granted in all cases punishable by death and may be granted in all other cases when in the court's discretion cause for such change is shown to exist after such hearing or upon such other proof as the court may require.' (Emphasis added)
Although a hearing was held pursuant to CR. 12, defendant has failed to cause a transcript of that hearing to be included in the record on appeal. This Court, therefore, is deprived of any means by which to review the trial court's ruling on the motion for change of venue. It cannot be presumed that the trial court abused its discretion. Hopper v. State (1974), Ind.App.,314 N.E.2d 98; Glenn v. State (1973), Ind.App., 290 N.E.2d 103.
Additionally, defendant has proffered no supporting affidavits to substantiate his 'inflammatory' criminal history which would cause him denial of a fair trial. Glenn, supra. A careful reading of the entire transcript reveals no indication that defendant did not receive a fair and impartial trial. No abuse of discretion has been shown.
III. Defendant asserts that the trial court abused its discretion by overruling his motion for a continuance when the State submitted an additional list of two witnesses prior to trial and subsequent to the filing of the original list on January 15, 1973.
The granting of a continuance on non-statutory grounds is within the discretion of the trial court. TR. 53.4. Denial of such a motion will not result in reversal absent a clear showing of abuse of discretion. Stock v. State (1974), Ind.App., 319 N.E.2d 871, 873; Hopper, supra, p. 103.
On April 2, 1973, defendant objected to the State calling as witnesses two Louisiana Police Officers, since they were not on the original list of witnesses. In overruling that motion, the court stated as follows:
COURT: 'All right. In examining the case of Bernard v. State, at least in its theory, and in applying the rules pronounced therein, I'm going to overrule your objection at this time and permit the police officers to testify provided the following conditions are met; number one, that Mr. Foutty in fact provides you with a complete copy of the report made by these two police officers which will be the substance of their testimony in this cause provided that he furnish this copy to you yet today. Secondly, on the condition that you be given an opportunity to personally interview these two police officers before they testify, after which you will be permitted to again make an objection to the court, objecting to their testimony if you find good and sufficient reason to do so as a result of your interview of the two officers and as a result of your examination of their report. If I do not hear from you regarding such good and sufficient reason to exclude their testimony, I will permit them to testify. Have you any questions at this time?
The following colloquy reveals that the State complied with the court's order:
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