Buchanan v. State

• Decision Date: 13 August 1975
• Docket Number: No. 175S18,175S18
• Citation: 263 Ind. 360,332 N.E.2d 213
• Court: Indiana Supreme Court
• Parties: Joe BUCHANAN, Jr., Appellant, v. STATE of Indiana, Appellee.

Page 213

332 N.E.2d 213

263 Ind. 360

Joe BUCHANAN, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 175S18.

Supreme Court of Indiana.

Aug. 13, 1975.

Arthur Lewis Belkind, Chicago, Ill., Barrie C. Tremper, Public Defender, Allen County, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

I.

On April 10, 1973, appellant was indicted on charges of first-degree (felony murder and second degree murder). On April 30, 1974, a jury found him guilty of first degree murder. He appeals.

Appellant sets forth twenty-one (21) issues. We first consider his claim that there was insufficient evidence to allow a conviction. We consider only the evidence favorable to the State and the reasonable inferences to be drawn from that evidence. Blackburn v. State (1973) Ind., 291 N.E.2d 686, and cases cited therein.

In this case, an alleged accomplice, Nathaniel Sanders, testified that on March 12, 1973, he and the Appellant stole a shotgun from the house of an acquaintance. Sanders took his father's car, and he and Appellant arrived at the Gfell service station in Ft. Wayne around 9:00 P.M. Sanders requested and received the restroom key from Richard Gfell, the station owner. Sanders used the restroom, returned the key and was joined at the door of the station by Buchanan who carried the shotgun.

Buchanan told Gfell, 'This is a stick-up.' Gfell said, 'Is this a joke?' He reached into his back pocket, but Buchanan told him to take his hand out of the pocket. Gfell put his hands in the air. Buchanan shot him. Buchanan ejected one shell and the weapon jammed. Buchanan and Sanders fled. Richard Gfell died the next day, March 14, 1973. On March 20, 1973, Appellant Buchanan was apprehended with the murder weapon in his possession.

Appellant says that Sanders' testimony is untruthful. Appellant argues that cross-examination destroyed the reliability of Sanders' testimony and that we should understand this even though the jury did not. In short, Appellant wishes us to do what we do not do--usurp the function of the jury and judge the credibility of a witness. There is no merit in law to Appellant's sufficiency issue.

II.

Appellant's next contention revolves around Rule CR. 4(B) of the Indiana Rules of Criminal Procedure, which provided at the time of this trial:

'If any defendant held in jail or on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within fifty (50) judicial days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try during such fifty (50) judicial days because of the congestion of the court calendar.'

The rather complex history which leads to his issue is as follows. The Appellant was arrested on March 20, 1973, and indicted for first degree (felony) murder and second degree murder on April 10, 1973. Between April 10, 1973, and July 6, 1973, several continuances chargeable to the Appellant were granted so that the Appellant could secure private counsel. On July 9, Appellant entered a plea of not guilty and trial ws set for January 8, 1974. On January 7, 1974, a continuance until January 21 was granted, again due to Appellant's arrangements for private counsel. On January 21, 1974, trial was set for April 23, 1974. On February 11, 1974, attorneys for the state and Appellant appeared in open court, at which time trial was reset for April 2, 1974. On March 18, 1974, the trial court granted a prosecution motion for continuance on the ground of the unavailability of a witness and reset trial once more for April 23. Trial commenced on April 23, 1974, at which time Appellant's motion to dismiss on the basis of Rule CR. 4(B) was denied.

Appellant contends that a motion for early trial pursuant to Rule CR. 4(B) was made on January 21, 1974. There is nothing in the record to support this contention apart from the argument of Appellant's attorney in support of Appellant's motion to dismiss on April 23 and possible inferences which may be drawn from the argument of the prosecutor in opposition to that motion. The record reveals the following statement by counsel for the Appellant in his argument in support of the April 23rd motion to dismiss:

'Now at that time (January 1921), Your Honor, I noted that the defendant had been incarcerated for almost a period of a year and certainly that wasn't due to any remiss on the part of the Court or on the part of the Prosecutor, but I did request that the case be advanced at that point as quickly as possible, if it would be possible, and Your Honor stated, after very carefully looking over his calendar, that your calendar would simply not permit it. However, if an earlier date arose, you would certainly consider it and notify me. And, Your Honor, my request for advance was made pursuant to Rule 4(B). . . .'

This is simply not sufficient to show that a motion or request pursuant to Rule CR. 4(B) was in fact made. That the prosecutor responded on the merits to the argument of the defendant is similarly unpersuasive. There is nothing to show that the trial court was ever put on notice of the desire for a speedy trial pursuant to Rule CR. 4(B). On the contrary, the above-quoted passage is indicative of rather informal discussion not at all revolving around Rule CR. 4(B).

It is the duty of the Appellant to make a proper record and to bring a proper record before an appeals court. Glenn v. State (1972), Ind.App., 290 N.E.2d 103. The early trial rule under Rule CR. 4(B) is not self-executing. Gross v. State (1972), 258 Ind. 46, 278 N.E.2d 583. The record does not show that the rule was ever invoked.

Even if we were to accept the Appellant's contention that a motion for early trial was presented to the trial court, it is clear that the acquiescence of the Appellant to the setting of the April 23 trial date constituted waiver. Trial had been set for April 2, complying with Rule CR. 4(B) on the basis of court docket congestion. After the granting of the motion for continuance by the trial court on March 18, it was incumbent upon the Appellant to protest at his first opportunity if the trial date set was beyond the period designated by Rule CR. 4(B). Utterback v. State (1974), Ind., 310 N.E.2d 552. The Appellant offered no such protest until the date of trial. In fact, the record reveals that counsel for the Appellant expressly consented in correspondence with the prosecutor to postponement of the trial beyond April 2. To permit a defendant to then successfully assert his right to a speedy trial on the date of trial is to invite attorney trickery of the most flagrant sort.

III.

At the start of the trial, defense counsel orally requested the court to consider the possibility of prejudicial publicity during the course of the trial. The court said it would admonish the jury 'in a homespun fashion.' Appellant's attorney said, 'Fine, Your Honor.' Appellant now claims that it was reversible error for the court to deny his motion 'To Exclude the Press From the Courtroom During Pre-Trial Hearings or Trial, And To Restrict Reporting of the Case.' First, there is no record of a 'Motion.' Second, Appellant acquiesced in the admonition procedure as a substitute for exclusion of the press. Third, Appellant has compiled no record of damaging publicity but has merely asserted that such existed. cf. Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.

IV.

Appellant claims that his cross-examination of Officer Geradot was erroneously restricted. Appellant wished Officer Geradot to relate conversations he had had during the course of his investigation of the crime with the three people who were present during the crime. Obviously, the remarks of these people to Officer Geradot were hearsay and properly excluded by the trial judge. Furthermore, each of these people later testified for the State and were cross-examined. At that time they were asked about their remarks to Officer Geradot. Thus, Appellant was not harmed by the justified restrictions put upon his cross examination of Officer Geradot.

V.

The argument is made by Appellant that the court erroneously permitted proof of other crimes to be introduced into evidence against the Appellant. Two instances are cited. In the first, two women testified that on April 20, 1973, they observed Appellant with a shotgun. Further testimony by police officers revealed that this shotgun was the murder weapon. No testimony about a separate crime has occurred.

The second instance was when one Mason testified that Appellant held a shotgun to the head of another person. Pointing a firearm at another is a crime. IC 1971, 35--1--79--5 (Burns' Ind.Stat.Ann. § 10--4708 (1956 Repl.)). However, Appellant did not object to this testimony and has therefore waived the alleged error. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696.

VI.

In a tavern one night during trial, one of the jurors said to a fellow customer that there would be a hung jury. The juror admitted this violation of the standard admonition not to discuss the case. The juror told the trial judge the remark was made in jest. Nevertheless, the judge dismissed this juror over Appellant's objection, and Appellant assigns this decision as error. As in other of the issues he raises on this appeal, Appellant cites no authority to bolster his claim or to guide the Court. On the merits, Appellant has not shown that the discharge of the juror and his replacement by an alternate juror prevented Appellant from receiving a fair trial. Rule TR. 59(A)(1); Rule CR. 16.

VII.

Appellant makes the argument that the crucial testimony of Nathaniel Sanders should not have been admitted because it constituted a violation of the spirit of Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which held...