Dorsey v. State, 883S303

• Decision Date: 11 March 1986
• Docket Number: No. 883S303,883S303
• Citation: 490 N.E.2d 260
• Parties: Reginald J. DORSEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 260

490 N.E.2d 260

Reginald J. DORSEY, Appellant, v. STATE of Indiana, Appellee.

No. 883S303.

Supreme Court of Indiana.

March 11, 1986.

Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a jury conviction for burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.) and two counts of conversion, a class A misdemeanor, Ind.Code Sec. 35-43-4-3 (Burns 1985 Repl.). Defendant-appellant, Reginald J. Dorsey, was sentenced to a prison term of twelve years.

Appellant raises nine issues on appeal: (1) Whether the trial court erroneously denied his motion to dismiss which was based upon noncompliance with the Interstate Agreement on Detainers; (2) Whether the trial court erred by granting both the State's motion for continuance and consolidation of offenses for trial; (3) Whether the trial court erred by refusing to take judicial notice of the dates the charges were filed; (4) Whether the trial court erred by denying his motion to strike the State's rebuttal evidence which had not been disclosed pursuant to a discovery order; (5) Whether the trial court allowed the introduction of impermissibly tainted identification testimony; (6) Whether the trial court's ruling on instructions regarding witness credibility, accessory liability, included offenses, and sources of law was in error; (7) Whether the identification evidence is sufficient to sustain his convictions; (8) Whether the trial court erred by entering judgments on inconsistent jury verdicts; (9) Whether the trial court erred in the calculation of pretrial credit.

These are the facts which tend to support the determination of guilt. On May 18, 1981, both the Goodin home and the Birkey home were burglarized. Hurbert Goodin returned home to find his back door, which had been locked before his son left home that morning, had been kicked in. He determined that the following items were missing: his son's stereo equipment, his daughter's jewelry box, and his daughter's jewelry tree with necklaces. Goodin reported the crime.

Later that afternoon the police asked Goodin to come down to the station to see whether he could identify property which was recovered from co-defendant's impounded car. Goodin identified the jewelry, jewelry box, and stereo components which had been stolen that morning.

When Wayne Birkey returned home at noon on May, 18, 1981, he observed a car backed up in his driveway to the front door of his house. He then saw appellant and co-defendant Neely come out of his house. Appellant shut the trunk lid of the co-defendant's car, they jumped into the car, and then drove down the driveway toward Birkey. They drove their car across Birkey's lawn. Birkey followed the car and later saw them by their disabled car with appellant motioning to Birkey that he needed assistance.

A portable television set, two jewelry boxes, and coins were determined to be missing from the Birkey home. The master bedroom was in shambles, the drawers were out, and clothes were strewn on the floor.

Later that afternoon appellant and co-defendant went to the Powell residence and received a ride to a grocery. Sergeant Rutkowski found co-defendant's abandoned car approximately one-half mile from the Powell residence. When the car was searched items taken from the Birkey home were recovered.

Rutkowski sent latent fingerprints collected from co-defendant's car and appellant's fingerprint card which was made during booking to the FBI for examination and comparison. Elbert Lockhart, a FBI fingerprint specialist, matched four of the latent fingerprints with appellant's fingerprint card.

I

Appellant argues that the trial court erred by denying his motion to dismiss which was predicated upon the State's failure to bring him to trial within the limits prescribed by the Interstate Agreement on Detainers.

On May 5, 1981, appellant escaped from the Michigan Correction facilities. Indiana filed the present burglary information on May 29, 1981. On June 9, 1981, appellant was in the custody of the Illinois authorities based upon outstanding warrants from Michigan and Indiana for the escape and burglary, respectively. Appellant's affidavit and demand for timely extradition and speedy trial was made on June 22, 1981. On June 26, 1981, appellant was released from Illinois custody and returned to Michigan authorities at the Kent County Jail. From June 26th until January 20, 1982, appellant was being detained by Michigan authorities while awaiting his trial. Indiana filed the present theft informations on July 24, 1981. Appellant was sentenced on the Michigan escape charge on January 20, 1982. Michigan returned appellant to Indiana on May 3, 1982, and he was brought before the court on these charges two days later.

During the period of June 26, 1981, until January 20, 1982, appellant was apparently not only being detained by Michigan authorities while awaiting trial but was also serving a sentence at the Kent County Jail. However, neither characteristic of appellant's detention qualifies him as an intended beneficiary of the Interstate Detainer Agreement.

The status of a person who "has entered upon a term of imprisonment in a penal or correctional institution" is one condition precedent to invocation of the speedy trial provisions of this agreement. Ind.Code Sec. 35-33-10-4 (Burns 1985 Repl.). This detainer act applies to persons who are already convicted and serving time in prison and does not apply to persons who are awaiting trial. Pallett v. State (1978), 269 Ind. 396, 381 N.E.2d 452. Appellant may not therefore invoke the provisions of this act based upon his custody status.

Appellant was apparently also serving a sentence while detained at the jail. However, this status also does not bring him within the coverage of qualified persons entitled to the benefits of this act. The purpose of this agreement is to encourage the expeditious and orderly disposition of charges outstanding against a prisoner because outstanding charges create uncertainties which obstruct the prisoner's treatment and rehabilitation programs. The act was intended to benefit persons serving time in prison. Appellant was not in prison. Therefore, the purposes of this agreement were not frustrated by the trial court's finding that appellant was not entitled to invoke the provisions of this act at the time that he filed his demand for a speedy trial.

II

Appellant claims that the trial court erred by granting both the State's motion for continuance and consolidation of offenses for trial.

While the scheduled trial date was July 12, 1982, appellant did not file notice of his alibi until July 6th. During the intervening weekend immediately before the trial the State attempted to determine what evidence would be used in support of his alibi. Pursuant to this attempt, the State became aware of co-defendant Neely's testimony that a man nicknamed "Fishman" was the male person responsible for the burglary. The State determined that Fishman's proper name was Vernon Barnett. However, the offices of the FBI and St. Joseph police were closed for regular business hours over the weekend. Therefore, the State was unable to make any fingerprint comparison to determine if Barnett was the man who participated in the crimes. The State's motion for continuance was made on the first day of the scheduled trial and was predicated upon the interests of justice insofar as appellant may not have been the person responsible.

Since appellant objected to any continuance, the court conducted a lengthy colloquy with him to determine how he might be prejudiced by a continuance based upon the potentially exculpatory evidence. The court determined that appellant's alibi witnesses would be available to testify should a continuance be granted. In addition, defense counsel acknowledged that should the fingerprint comparison result in exculpatory evidence it would be difficult to overturn a jury verdict based upon a claim of newly discovered evidence. The motion for continuance was granted.

The State had filed the burglary charge on May 29, 1981, and the theft charges on July 24, 1981. The burglary trial had been scheduled to commence on July 12, 1982, and a separate theft trial had been set for July 19, 1982. On July 12th the State moved for both a continuance and a consolidation of the offenses for trial. The continuance was granted on July 12th and joinder was granted on the 14th. The trial was rescheduled for July 19th, which was the date on which the second trial was to commence.

Appellant argues that the motion for continuance was based upon improper and ingenuous grounds. He claims that the State would not have been able to consolidate the offenses had the continuance motion been denied.

Granting a motion for a continuance is a matter within the trial court's purview. In this case, the trial judge properly balanced the competing interests involved. Since the State's investigation of fingerprint exemplars could have produced exculpatory evidence, and since the alibi witnesses would be available to testify at the rescheduled trial date, and since appellant gave no concrete reason for denying the State's motion, the trial judge reached a rational result.

Appellant also contends that the consolidation of offenses was erroneous due to the possible confusion and prejudice to a defendant facing multiple charges.

Appellant's criminal conduct consisted of a series of connected acts which constituted a single scheme or plan and thus the burglary and theft offenses could have been joined in the same information. Ind.Code Sec. 35-34-1-9(a)(2). Therefore, the State could move for the joinder of these related offenses for trial. Ind.Code Sec. 35-34-1-10(b). To ensure a defendant's due process rights any such motion should be made before the commencement of trial. In this case, the submission of the...