Caine v. State

• Citation: 163 Ind.App. 381,324 N.E.2d 525
• Decision Date: 10 March 1975
• Docket Number: No. 2--174A49,2--174A49
• Parties: Maurice CAINE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 525

324 N.E.2d 525

163 Ind.App. 381

Maurice CAINE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2--174A49.

Court of Appeals of Indiana, First District.

March 10, 1975.

David M. Adams, Castor, Richards & Adams, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant, Maurice Caine (Caine) was charged in three counts with (1) armed robbery, (2) automobile banditry and (3) conspiracy to commit a felony, to-wit, robbery. Before trial Court II, automobile banditry, was dismissed and the case was tried to a jury on Counts I and III.

Caine was found guilty of theft under Count I and was also convicted on Count III, conspiracy to commit a felony and the jury assessed his punishment at a fine and imprisonment as prescribed by statute.

The facts of the case are as follows:

Peggy Dilk was an employee of the MaJik Market at 750 East 106th Street in Hamilton County, on May 8, 1973. She testified that at approximately 11:00 o'clock P.M. Caine entered the store with another man who drew a gun and demanded money. Caine took money out of the cash register, two cartons of Camel filter cigarettes from the counter, and the pair also took Winston cigarettes, two packs of batteries and two pizzas.

Terry Rickard, a resident of 107th and Bellefontaine two blocks from the MaJik Market on said date at sometime after 11:00 P.M. heard a commotion and observed an automobile stuck in her yard, followed by two figures getting into a medium sized, dark colored car, which was driven away.

Marlene Littleton, Mrs. Rickard's mother who resided with her, heard the same commotion, and overheard voices from the yard state they would come back for the car later.

She called the police and when they arerived they were given the information she had overheard.

Officer Prince of the Indiana State Police at the time was on duty and received two dispatches, one involving the armed robbery at the store and the second concerning the abandoned vehicle at 107th and Bellefontaine. Mrs. Littleton told Prince that the abandoned car's occupants intended to return and that there were three people involved who left in a dark colored car.

Officer Prince was standing outside the abandoned automobile and observed a pizza laying on the front seat. Deputy Sheriff Castor who assisted in the investigation found a carton of Camel filter cigarettes with 'MaJik Market' stamped on the box laying on the ground near the car. A description of the stolen merchandise had been dispatched minutes prior to the officer's discovery of the pizza and cigarettes. Officer Castor discovered the registration of the car in the abandoned car's glove box which showed Anna Louise Caine was the owner.

Deputy Sheriff Steve Sell, in a preliminary investigation of the market robbery, obtained a description of the suspects and the items taken from the store. He also learned that a weapon had been involved in the robbery.

Deputy Sell went to the location of the abandoned automobile and there observed the pizza and the carton of Camel filter cigarettes found in and about the abandoned car. Officer Sell informed Officers Prince and Castor of the information he had received regarding the robbery of the MaJik Market.

Next to appear at the scene of the abandoned car was State Trooper James Rhinebarger who was informed by Officer Prince together with Officer Sell that three people were believed to be involved with the abandoned vehicle and were overheard to say they would return for it.

At approximately 1:00 o'clock A.M. the police, still at the abandoned car, observed three subjects drive by in a dark green Chevrolet. There were few cars on the road at that hour and the Chevrolet matched the description of the automobile seen earlier and further there were three occupants at the time the police observed it. The green car was traveling at approximately 2 to 5 miles per hour with all three occupants observing the police at the time although the main activity had died down and no police flashers were on. The Chevrolet turned in a direction of 180 away from the police and began accelerating. The police immediately gave chase.

Officer Rhinebarger stopped the green colored car by driving in the middle of an intersection. In response to a question by Officer Rhinebarger one of the occupants stated that they were in the area to pick up a car which had been stuck in the mud. None of the suspects had been searched at that time. The police officers then asked the three occupants for their drivers' licenses, from which they determined one of the passengers was Caine. The police then proceeded to have the three passengers in the car remove themselves therefrom. Following this, the three occupants were searched.

Officer Rhinebarger then searched the green colored automobile. He testified that he had been informed that a gun had been involved in the robbery and was concerned for his own safety and he discovered a revolver under the front seat which he then confiscated. Afterward Caine was searched and found to have a large amount of money on his person and the suspects were taken back to the MaJik Market where Peggy Dilk identified Caine as one of those who had robbed her earlier in the evening.

The First Issue raised by Caine in his motion to correct errors was that the court failed to grant Caine's motion to discharge on the basis of a failure to have a speedy trial. Ind. Rules of Procedure, Criminal Rule 4(B) provides that when a defendant is held in jail and moves for an early trial he shall

'. . . be discharged if not brought to trial within fifty (50) judicial days (now seventy (70) calendar 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 him during such fifty (50) judicial days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.' (Emphasis added.)

The trial was set for September 24, 1973, which was the 50th judicial day following Caine's motion for a speedy trial. On the trial date Caine filed a motion to suppress and trial was postponed until September 25 by the court on its own motion due to a criminal trial then in progress. On September 25th the court began hearing evidence on Caine's motion to suppress. Evidence was heard and not being completed the hearing was continued to a later date. Trial was commenced before a jury on September 26, 1973, was recessed, and in the absence of the jury the court completed the hearing on Caine's motion to suppress and at the conclusion of the same trial was resumed before the jury.

Caine precipitated the two day delay by waiting until the date set for trial before submitting his motion to suppress. The State contends that because of this Caine is not entitled to discharge under CR. 4(B).

It goes without question that on September 24, 1973, the trial was postponed until September 25 by the court on its own motion 'due to a criminal jury trial in progress.' It was then necessary to hear Caine's motion to suppress evidence and the actual trial did not commence on September 25 as the court was hearing evidence on Caine's motion to suppress.

Caine further insists that the State did not, at least ten days before the trial, file a statement of congestion of the trial calendar as provided and required within CR. 4(B).

It is our opinion that the Rule specifically protects the rights of the public as well as the defendant's rights where a speedy trial is requested and cannot be granted because the court's docket is overcrowded and the trial cannot be had within the time limitation.

Nothing would have been gained by the Prosecuting Attorney filing a motion for a continuance more than ten days before September 24, 1973, in this case, nor would anything more have been gained had he filed an emergency affidavit less than ten days before September 24, 1973, showing that the court's docket was so full the case could not be commenced on that date.

The court takes judicial notice of its own docket and the cases that are to be disposed of. Experience teaches us that many trials are commenced, expecting to last a limited number of days, and with no fault of anybody may overrun a day or two or even a week. The trial court just couldn't get the case of State v. Worsley it was trying disposed of before September 24, 1973. It certainly was within the powers of the court to determine that fact and to postpone the trial of the case at bar until the following day when the court had time to handle it.

Our Supreme Court, in Harris v. State (1971), 256 Ind. 464, 269 N.E.2d 537, in discussing Rule CR. 4 noted at the time a criminal trial was set the trial date was at odds with CR. 4(A) and indicated that the delay was necessary due to the court's jury trial schedule. The next action taken was six days short of seven months from the date of appellant's arrest. The court, in Harris, in discussing the guarantee to a speedy trial, said it was equally clear that one circumstance that was recognized by the rule, excusing trial within a six months period is where the trial docket is congested and the trial cannot be had within the time allotted. Speaking further, the court said:

'. . . This being the case, we are unable to say that appellant is entitled to discharge solely on the basis that trial was continued beyond the six month period at the instance of the trial judge and not the prosecutor. Whether the trial judge or the prosecutor makes the motion would seem irrelevant when considered in light of the rule's objective and the right sought to be protected. We fail to see any prejudice accruing to appellant as a...