Bridgewater v. State
| Decision Date | 20 August 1979 |
| Docket Number | No. 2-1277A452,2-1277A452 |
| Citation | 181 Ind.App. 563,393 N.E.2d 223 |
| Parties | Robert Joseph BRIDGEWATER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Louis H. Borgmann and Stuart T. Bench, Indianapolis, for appellant-defendant.
Theo. L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant Robert Bridgewater was convicted by a jury of second degree burglary, IC 1971 35-13-4-4(b) (repealed Oct. 1, 1977). On appeal he challenges the trial court's rulings on his motions for a continuance and directed verdict. He also asserts error regarding the testimony of certain State's witnesses, the chain of custody of a State's exhibit and the court's refusal to instruct on malicious trespass as a lesser included offense of second degree burglary.
We affirm. 1
In the early morning hours of March 14, 1977, Gregory Muse, Deborah Shattuck, appellant Robert Bridgewater and a female companion stopped in Delphi, Indiana, on the way to Indianapolis from Chicago. Shattuck testified Muse and appellant Bridgewater left their car and "kicked and hit" the rear door of a building, Orr's Drug Store, and then disappeared into the building.
Officer Hoard responded to an alarm at Orr's Drug Store and upon arriving noticed two steel rear doors ajar. Shortly thereafter, appellant emerged running from the doors and Officer Hoard ordered him to stop. When appellant continued to run Officer Hoard fired a rifle at appellant, striking him in the hip. Other officers arrived at the scene and the interior of the store was inspected. The steel doors appeared to have been forced open and glass in an inside door had been broken. Drawers in the pharmaceutical section of the store had been disturbed. Gregory Muse was found hiding in a large waste basket and a search of his person produced two small bottles containing Thorazine and Valium, which were later identified as the property of Orr's Drug Store.
I. Did the trial court err by denying appellant's motion for a continuance for the purpose of obtaining Victoria Smith as a defense witness?
II. Was it err for the court to permit State's witness Sherrie Randall to testify?
III. Should the court have admitted State's Exhibit No. 3 () over appellant's objections as to chain of custody and identification?
IV. Should the court have granted appellant's motion for judgment on the evidence (directed verdict)?
V. Did the court commit error in refusing appellant's tendered instruction on malicious trespass as a lesser included offense of second degree burglary?
VI. Was the jury's verdict contrary to law?
Appellant first contends the court should have granted him a continuance for the purpose of obtaining the testimony of Victoria Smith. Appellant concedes this issue is controlled by IC 1971 35-1-26-1, and argues he substantially complied with the mandates of the statute. The State's position is that appellant did not comply with the statute, substantially or otherwise. We agree with the State's contentions.
IC 1971 35-1-26-1 clearly and specifically sets forth the conditions that must be met in order to obtain a continuance on this ground:
35-1-26-1 (9-1401). Motion and affidavit of accused. A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit that the witness, if present, will testify to the facts which the defendant in his affidavit for continuance alleges that he can prove by the absent witness, or if the evidence be written or documentary, that such documentary evidence exists, the trial shall not be postponed for that cause. The defendant shall file such affidavit for continuance at least five (5) days before the date set for trial or shall sustain the burden of establishing to the satisfaction of the court, that the defendant is not at fault for failing to file such affidavit for continuance at an earlier date. If the motion for continuance is based upon the illness of the defendant or of a witness, the motion shall be accompanied by the oral testimony, in open court, or by the written statement of a physician or hospital official having the care or custody of such defendant or witness, presenting the nature of the illness and the probable duration of his incapacity to attend trial. Such written statement of the physician or hospital official shall be sworn to by such physician or hospital official before a notary public or other officer authorized to administer an oath. The Court may appoint a physician who shall examine the defendant or the witness, and shall report to the court on the nature of the defendant's illness and the probable duration of his incapacity to attend trial. Compensation for such physician shall be provided by order of the court.
We find appellant's attempt at complying with the statute wholly defective. Appellant's motion, filed June 8, 1977, though timely, was unsupported by affidavits and therefore was properly denied by the trial court. On June 9, 1977, appellant again moved for a continuance and this time attached an affidavit. However, the motion was untimely 2 and the affidavit was defective. The affidavit did not show due diligence, residence of the witness, facts the witness would testify to, or that appellant was unable to prove the facts by another witness. In addition, appellant's motion was not accompanied by a written statement of a physician or hospital official which discussed the nature and illness of the witness. 3 Given these omissions we cannot say the judge erred in denying the motion. Lockridge v. State, (1977) Ind.App., 359 N.E.2d 589; Lee v. State, (1976) Ind.App., 349 N.E.2d 214; Tyner v. State, (1975) Ind.App., 333 N.E.2d 857.
Appellant places great reliance on DeVaney v. State, (1972) 259 Ind. 483, 288 N.E.2d 732, in which the State moved for a continuance three days prior to trial and the motion was granted conditioned upon the submission of a proper affidavit. Our Supreme Court found the motion to be in substantial compliance with the statute and upheld the trial court's ruling. Contrary to appellant's contentions, we do not think Devaney controls here. The only point of noncompliance in Devaney was the time within which the motion was filed; the affidavit apparently fulfilled all the statutory requirements. Here, appellant's motion and affidavit were not only untimely, but the affidavit failed to comply with the majority of the statute's specifications. DeVaney is therefore clearly distinguishable.
Appellant also argues denial of his motion for continuance was abuse of the court's discretion. It is true that where the statute is not complied with, or a statute does not otherwise control, the ruling on a motion for a continuance falls within the discretion of the trial court. Johnson v. State, (1970) 254 Ind. 465, 260 N.E.2d 782; Orms v. State, (1975) Ind.App., 330 N.E.2d 757. However, appellant has failed to demonstrate any abuse of this discretion and we find no error.
Appellant renewed his motion for continuance during trial so he could arrange for Ms. Smith to testify as a rebuttal witness. The ruling on this motion was discretionary with the trial judge. Johnson, supra; Orms, supra. In light of appellant's failure to properly make the motion prior to trial and the fact the motion was made at the close of all testimony, we cannot say this ruling was an abuse of discretion.
During trial the State called two witnesses, Deborah Shattuck and Sherrie Randall, who were not listed on the Information nor disclosed to appellant in sufficient time to prepare for trial. Appellant claims as a result he was denied due process of law. Unfortunately, we are compelled to hold any error is waived.
Appellant's Motion to Correct Errors and the Memorandum in support thereof are addressed to the testimony of Deborah Shattuck. No mention of Sherrie Randall is made. Appellant's brief, on the other hand, does not mention Deborah Shattuck's testimony; only the testimony of Sherrie Randall is discussed. 4 Any error alleged in the motion to correct errors and not treated in appellant's brief "shall be deemed waived." A.R. 8.3(A). Thus, any argument with regard to Deborah Shattuck's testimony is waived. Additionally, any argument first raised on appeal cannot be considered by our appellate courts. E. g., May v. State, (1976) 265 Ind. 25, 349 N.E.2d 171. We therefore must hold any error concerning Sherrie Randall's testimony waived.
State's Exhibit No. 3 consists of two bottles of drugs taken from Gregory Muse at the scene of the crime. Appellant challenges the admission of this exhibit into evidence, alleging a failure to establish a proper chain of custody. He also claims the bottles were inadequately identified. The State contends appellant has waived any error here because of an improper objection, and alternatively, argues the chain of custody was established. We find no error.
At the outset we must hold appellant has failed to preserve error on the...
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