Cox v. State, 280S49

Decision Date05 May 1981
Docket NumberNo. 280S49,280S49
Citation419 N.E.2d 1279,275 Ind. 688
PartiesDon C. COX, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court
Perry H. Harrold, Wilson, Coleman & Roberts, James H. Voyles, Indianapolis, for appellant

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

In a trial by jury, Defendant (Appellant) was convicted of four (4) counts of Robbery, Class B felonies, Ind. Code § 35-42-5-1 (Burns 1979), one (1) count of Attempted Robbery, Class A felony, Ind. Code §§ 35-42-5-1, 35-41-5-1 (Burns 1979), and one (1) count of Murder, Ind. Code § 35-42-1-1(2) (Burns 1979). He was sentenced to ten (10) years imprisonment upon each of the Robbery convictions, to forty (40) years imprisonment upon the Attempted Robbery conviction and to fifty (50) years imprisonment upon the Murder conviction. This direct appeal presents the following issues:

(1) Whether the trial court erred in denying the defendant's motion to suppress certain evidence obtained by interrogation of himself and three other men;

(2) Whether the trial court failed to enforce the defendant's rights under Ind.R.Crim.P. 4;

(3) Whether the trial court erred in denying the defendant's motion to prohibit the testimony of a State's witness;

(4) Whether the trial court erred in denying the defendant's motion to suppress his own statement;

(5) Whether the trial court erred in ordering the fingerprinting of a defense witness;

(6) Whether the trial court erred in giving preliminary instruction No. 8;

(7) Whether the trial court erred in refusing Defendant's tendered final instructions Nos. 2, 3, 5, 6, 9, 10, 12 and 13;

(8) Whether the trial court erred in denying the defendant's motion for a mistrial;

(9) Whether the trial court erred in denying the motion to correct error grounded upon allegedly newly discovered evidence; and

(10) Whether there was sufficient evidence to sustain the verdict.

Additionally, Defendant has asked for clarification of his sentences.

ISSUE I

Prior to trial, the defendant moved to suppress the testimony of and or evidence from the defendant, Kevin Edmonds, Paul Rowley and Michael Daniels. The motion was based upon the allegations that these men had been questioned by the police soon after the incidents at bar; that the sessions had been tape-recorded; and that the tapes had been subsequently reused. The defendant contended that the reusing of the tapes amounted to a wilful or negligent destruction of material evidence and that therefore, no evidence/testimony should flow from the four men. Following a full evidentiary hearing, the trial court denied the motion, ruling that the defendant did not demonstrate materiality.

Defendant has not persuaded us that he was, in any way, harmed by the denial of his motion. The record discloses that neither Rowley, nor Daniels testified in the case. Further, the defendant did not object to the testimony of Edmonds at trial. Also, although the tapes were not available to the defendant, it does not appear that he was thereby harmed. He did have access to a summary of one of the statements and a copy of a transcription of the other, and he thoroughly cross examined the witness. Finally, the defendant testified in his own behalf, and while it may be interpreted that he objected to the use of his statement to the police for impeachment purposes upon cross-examination, it also appears that he did have a copy of the statement. Under these circumstances, it is difficult to determine Defendant's allegation of error. He had access to his own statement and to those of Edmonds. There is no basis for holding that the trial court erred in denying Defendant's motion to suppress.

ISSUE II

The defendant next contends that the trial court erred in denying his motions under Ind.R.Crim.P. 4. While the defendant was arrested on February 6, 1978, an The defendant's argument is two-pronged: first, that the trial court erred in failing to order his release from jail when he was not brought to trial within six months of the date the charges were filed against him, see Ind.R.Crim.P. 4(A); and second, that the trial court erred in denying his motion for discharge because of the failure to bring him to trial within one year of the date the charges were filed against him, see Ind.R.Crim.P. 4(C). Both facets of the argument are without merit.

information was not filed against him until [275 Ind. 692] February 14, 1978. Thus, the State had until February 14, 1979, to bring the defendant to trial. Ind.R.Crim.P. 4(C). In this case, the jury was not sworn until April 18, 1979. The extraordinary delay of sixty-three (63) days must therefore be accounted for.

As to the defendant's assignment relative to Ind.R.Crim.P. 4(A), it is well-settled that a violation of that section presents nothing on appeal. See, e. g., Fryback v. State, (1980) Ind., 400 N.E.2d 1128; Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750; Lewis v. State, (1976) 264 Ind. 288, 342 N.E.2d 859.

Proceeding to the defendant's assignment relative to his motion for discharge under Ind.R.Crim.P. 4(C), that section provides:

Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of 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. Any defendant so held shall, on motion, be discharged.

As mentioned hereinbefore, the defendant was not brought to trial for sixty-three days beyond the expiration of the one year period. However, a delay of at least seventy-one days was attributable to the defendant. First, on June 22, 1978, he filed a motion for a change of venue. The motion was granted and the case subsequently transferred to Hancock County, where the transcript was duly received and docketed on July 28, 1978: a delay of thirty-six days. See Nettles v. State, (1975) 164 Ind.App. 205, 327 N.E.2d 625. See also State ex rel. Garvin v. Dearborn Circuit Court, (1972) 257 Ind. 631, 277 N.E.2d 370; State v. Grow, (1970) 255 Ind. 183, 263 N.E.2d 277. Second, on August 31, 1978, the defendant filed a "joint" motion for continuance of the September 5, 1978 trial date. The motion was granted and trial was reset for October 10, 1978: a delay of thirty-five days. Because seventy-one days of the delay were attributable to the defendant, the trial court did not err in denying Defendant's motion for discharge.

ISSUE III

The defendant asserts that the trial court erred in denying his motion to prohibit a State's witness from testifying. The witness was Kevin Edmonds, one of the defendant's accomplices in the criminal events at bar. Early in the case, Edmonds had been represented by an attorney who subsequently withdrew to become associated with the Prosecutor's office. Thereafter, Edmonds was represented by an attorney who formerly had been associated with the Prosecutor's office. Defendant submits that these facts demonstrate a conflict of interest severely discrediting Edmonds' testimony.

While we agree with the defendant that Edmonds' representation by these two lawyers bore upon his credibility, we can not say that he should have thereby been precluded from testifying. The witness' representation by these two lawyers was a proper subject for cross-examination and argument, and there has been no showing that it had any relevancy other than as to Edmonds'

credibility. As such, there was no basis for excluding the witness' testimony. Cf. Brown v. State, (1979) Ind., 385 N.E.2d 1148 (Prentice, J., dissenting) (Defendant's counsel had previously worked on the case as a deputy prosecutor).

ISSUE IV

The defendant next contends that the trial court erred in denying his motion to suppress his own statement to the police. In support thereof, he asserts that he was intoxicated when the statement was given, thereby rendering it involuntary. We do not agree.

Initially, we note that the record indicates that the defendant was not in the "custody" of the police when he gave the statement in question. Moreover, under the totality of circumstances then existent, there was a reasonable basis for the trial court's denial of the motion, in that several police officers testified that the defendant was not then intoxicated. Accordingly, the contention is without merit. See Jackson v. State, (1980) Ind., 411 N.E.2d 609; Feller v. State, (1976) 264 Ind. 541, 348 N.E.2d 8.

ISSUE V

At trial, the defendant's mother, Jane Flynn, testified in his defense. Upon cross-examination, she was asked whether she had ever been arrested and convicted of a crime, and she responded in the negative. Upon rebuttal, the State sought and obtained an order from the trial court, over objection, compelling the fingerprinting of Flynn. The purpose of this was to establish that the witness was the same person as one Jane Carruthers who had been convicted of shoplifting in 1967. Defendant assigns error to the fingerprinting as an improper technique of impeachment. We see no error here. The State was entitled to impeach the witness by showing that she had previously been convicted of the crime of shoplifting. She denied that she had been so convicted, but acknowledged that she had previously been known by the name Jane Carruthers. Jane Carruthers had been convicted of shoplifting, hence the issue of whether the witness and Carruthers were one and the same person became relevant.

Defendant also argues that evidence of prior convictions that...

To continue reading

Request your trial
18 cases
  • Daniels v. State
    • United States
    • Indiana Supreme Court
    • September 9, 1983
  • Abner v. State
    • United States
    • Indiana Supreme Court
    • June 25, 1985
  • Posey County v. Chamness
    • United States
    • Indiana Appellate Court
    • August 24, 1982
    ... ...         Our Supreme Court, in Reid v. State, (1978) 267 Ind. 555, 560-61, 372 N.E.2d 1149, discussed both the qualifications of a witness to testify as an expert and the standard of review of ... ...
  • Wiles v. State
    • United States
    • Indiana Supreme Court
    • July 7, 1982
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT