Drake v. State, No. 1078S220

Docket NºNo. 1078S220
Citation393 N.E.2d 148, 271 Ind. 400
Case DateAugust 23, 1979

Page 148

393 N.E.2d 148
271 Ind. 400
Tyrone Anthony DRAKE, Appellant,
v.
STATE of Indiana, Appellee.
No. 1078S220.
Supreme Court of Indiana.
Aug. 23, 1979.

Carol A. Glass, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant was convicted by a jury in the Marion County Criminal Court, Division IV, on August 30, 1977, of attempting to commit a felony while armed, Ind.Code (Burns 1975) § 35-12-1-1, and inflicting physical injury in the attempted commission of a robbery, Ind.Code (Burns 1975) § 35-13-4-6. Appellant raises several rather serious issues, but because we find reversible error in the first specification, we have no need to examine the remaining questions. They relate generally to the management of the trial, and because it is not likely they will recur on retrial, disposition of them here would not be helpful to the court and counsel at the second trial.

After the jury was sworn, the trial judge announced that he was going to waive the reading of the preliminary instructions, but that he would send them to the jury room along with the final instructions when the case was submitted to the jury. He indicated at that time that he was also going to waive the reading of final instructions. Neither party objected to such waivers or procedures. After final arguments, the trial judge again told the jury he was not going to read the instructions to them but was sending the instructions into the jury room with the jury. The judge instructed them to have their foreman read the preliminary [271 Ind. 401] and final instructions aloud before they began their deliberations. We have

Page 149

found this practice to be reversible error on two previous occasions. Williams v. State, (1978) Ind., 381 N.E.2d 458; Purdy v. State, (1977) Ind., 369 N.E.2d 633.

The State contends the defendant had ample opportunity to object to the announced intentions of the court, and that it was incumbent upon him to do so before he could raise the question here. The State's position is that the defendant should not be able to silently allow the procedure to take place and hold his unstated objection in reserve for appeal. The State points out that our appellate courts have discouraged the practice of trial attorneys endeavoring to get error in the record in this manner. Wright v. State, (1975) 163 Ind.App. 502, 324 N.E.2d 835; Hauk v. State, (1974) 160...

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9 practice notes
  • Williams v. State, No. 2-1076A393
    • United States
    • Indiana Court of Appeals of Indiana
    • July 22, 1980
    ...on defendant's silence, Dooley v. State, (1979) Ind., 393 N.E.2d 154, 156; a failure to read instructions, Drake v. State, (1979) Ind., 393 N.E.2d 148, 149; or improper sentence, Lewandowski v. State, (1979) Ind., 389 N.E.2d 706, 708. Appellant's failure to object during final argument to t......
  • State v. Lindsey
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 23, 1991
    ...So.2d 171 (Fla.Dist.Ct.App.1989); People v. Cartee, 104 Ill.App.3d 754, 60 Ill.Dec. 529, 532, 433 N.E.2d 326, 329 (1982); Drake v. State, 271 Ind. 400, 393 N.E.2d 148, 149 (1979); People v. Gonzalez, 157 A.D.2d 625, 550 N.Y.S.2d 643 (1990), appeal denied 76 N.Y.2d 893, 561 N.Y.S.2d 555, 562......
  • State of Washington v. Skinner, 97-1-00059-3
    • United States
    • Court of Appeals of Washington
    • May 24, 1999
    ...Noble, 155 F.2d 315, 318 (3d Cir. 1946) (same); State v. Iosefa, 77 Haw. 177, 880 P.2d 1224, 1231 (Ct. App. 1994) (same) ; Drake v. State, 271 Ind. 400, 393 N.E.2d 148, 150 (1979) (same); State v. Norris, 10 Kan. App. 2d 397, 699 P.2d 585, 587-88 (1985) (same); State v. Lindsey, 245 N.J. Su......
  • Muse v. State, No. 680S180
    • United States
    • Indiana Supreme Court of Indiana
    • May 11, 1981
    ...This procedure is in clear violation of Ind.R.Tr.P. 51(A) and (B) and Ind.Code § 35-1-35-1 (Burns 1975). Drake v. State, (1979) Ind., 393 N.E.2d 148; Williams v. State, (1978) 269 Ind. 430, 381 N.E.2d 458; Purdy v. State, However, we find significant differences in this case. Our statute wh......
  • Request a trial to view additional results
9 cases
  • Williams v. State, No. 2-1076A393
    • United States
    • Indiana Court of Appeals of Indiana
    • July 22, 1980
    ...on defendant's silence, Dooley v. State, (1979) Ind., 393 N.E.2d 154, 156; a failure to read instructions, Drake v. State, (1979) Ind., 393 N.E.2d 148, 149; or improper sentence, Lewandowski v. State, (1979) Ind., 389 N.E.2d 706, 708. Appellant's failure to object during final argument to t......
  • State v. Lindsey
    • United States
    • New Jersey Superior Court – Appellate Division
    • January 23, 1991
    ...So.2d 171 (Fla.Dist.Ct.App.1989); People v. Cartee, 104 Ill.App.3d 754, 60 Ill.Dec. 529, 532, 433 N.E.2d 326, 329 (1982); Drake v. State, 271 Ind. 400, 393 N.E.2d 148, 149 (1979); People v. Gonzalez, 157 A.D.2d 625, 550 N.Y.S.2d 643 (1990), appeal denied 76 N.Y.2d 893, 561 N.Y.S.2d 555, 562......
  • State of Washington v. Skinner, 97-1-00059-3
    • United States
    • Court of Appeals of Washington
    • May 24, 1999
    ...Noble, 155 F.2d 315, 318 (3d Cir. 1946) (same); State v. Iosefa, 77 Haw. 177, 880 P.2d 1224, 1231 (Ct. App. 1994) (same) ; Drake v. State, 271 Ind. 400, 393 N.E.2d 148, 150 (1979) (same); State v. Norris, 10 Kan. App. 2d 397, 699 P.2d 585, 587-88 (1985) (same); State v. Lindsey, 245 N.J. Su......
  • Muse v. State, No. 680S180
    • United States
    • Indiana Supreme Court of Indiana
    • May 11, 1981
    ...This procedure is in clear violation of Ind.R.Tr.P. 51(A) and (B) and Ind.Code § 35-1-35-1 (Burns 1975). Drake v. State, (1979) Ind., 393 N.E.2d 148; Williams v. State, (1978) 269 Ind. 430, 381 N.E.2d 458; Purdy v. State, However, we find significant differences in this case. Our statute wh......
  • Request a trial to view additional results

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