Brady v. State, 180S10

• Decision Date: 18 March 1981
• Docket Number: No. 180S10,180S10
• Citation: 275 Ind. 475,417 N.E.2d 1108
• Parties: Kenneth BRADY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1108

417 N.E.2d 1108

275 Ind. 475

Kenneth BRADY, Appellant, v. STATE of Indiana, Appellee.

No. 180S10.

Supreme Court of Indiana.

March 18, 1981.

Robert Graves, Marion, for appellant.

Linley E. Pearson, Atty. Gen., Cindy A. Ellis, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Brady was convicted in a trial by jury of the offense of robbery while armed pursuant to Ind.Code § 35-42-5-1, and received a sentence of imprisonment of ten years. He was also convicted at the same time of the offense of resisting law enforcement pursuant to Ind.Code § 35-44-3-3(1), and received a sentence of four years such sentence to run consecutively with the robbery sentence.

Appellant contends in this appeal as follows:

(1) The evidence is insufficient to support his conviction for armed robbery.

(2) The evidence is insufficient to support his conviction for resisting law enforcement.

(3) The verdict of guilty of resisting law enforcement is inconsistent with the verdict of not guilty rendered on a charge of attempted murder.

It is apparent on the face of this record that this appeal does not satisfy the jurisdictional prerequisites of Ind.R.App.P. 4(A)(7) in that there has been no single sentence imposed here having a minimum greater than ten years. Menefee v. State, 417 N.E.2d 302 (Ind.1981). We do however exercise our inherent judicial authority and retain this case for disposition on the merits in light of the passage of time during which it had pended in this Court.

Appellant was charged with the perpetration of an armed robbery of the Miller's Liquor Store on February 10, 1979, at 10:00 p. m., in Grant County, Indiana. He contends that the evidence serving to identify him as the perpetrator of the offense was insufficient. In determining this question we do not weigh the evidence nor resolve questions of credibility, but look to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. The conviction will be affirmed, if from that viewpoint there is evidence of probative value from which a reasonable trier of fact could infer that appellant was guilty beyond a reasonable doubt. Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.

The case for the prosecution came from civilian witnesses who observed the robbery from within and without the liquor store and police officers of the city of Marion and deputy sheriffs of Grant County who pursued the robbers as they made their escape. Three men entered the liquor store, each armed with a shotgun, and took about two hundred dollars from the register in the presence of the clerk in attendance. Two of the men wore ski masks. The third man wore no mask, but was not appellant. The men were observed going into the store carrying weapons and green trash bags by a customer who had just left the store and had entered his car. This customer observed the robbery take place and saw the men run out of the store and around the side of the building. They then saw a car exit an alley at the rear of the store. They described this car in an immediate report to the police as a 1974 or 1975 Monte Carlo, fairly new, with a white top and red bottom.

Within minutes a car described by police officers as a 1973 or 1974 Monte Carlo, red top and white bottom, was seen by a Marion city police unit, and this unit began to follow the car which was proceeding through the street within the speed limit at about thirty miles per hour. The Monte Carlo then speeded up, and the unit, with siren and warning lights on, proceeded to chase the car for about nine blocks.

A unit of the Grant County Sheriff's department, driven by Lt. Norton was positioned at the end of an alley, although not blocking the alley, down which the Monte Carlo was being pursued by the city police. Norton got out of the car, armed with a rifle, and stood at the end of the alley, as the car, about forty yards away, proceeded towards him at a rate of about fifteen to twenty miles per hour. The intersection of this alley with the street on which the sheriff's car was stopped was illuminated by a bright city street light. Norton aimed his rifle at the driver and yelled for the car to stop. As the car proceeded on towards him, he stepped back and the car swerved over at him. At this point Norton slipped and fell and at almost the same instant a shotgun blast came from the car, but did not strike him. The car narrowly missed hitting him, as did the following police car as it continued the chase through the intersection. Norton and another deputy fired at the car striking it and knocking a large hole in the rear window.

The pursuit continued, and one man in the car climbed out of the rear window while it was moving and made his escape. The car came to a stop shortly thereafter and two men exited the passenger side. One man was shot in the hip and fell outside the car. The second man successfully made his escape on foot. Beside the fallen man, who was one Clifford Larry, there was a shotgun, a ski mask, a green trash bag containing more than two hundred dollars and checks from the Miller Liquor Store.

Norton testified that he aimed his rifle at the driver of the car as he yelled, "halt". He further testified in court that the driver of the car was appellant Kenneth Brady, and that he was able to see him and had no doubt about his...