Dudley v. State

• Decision Date: 15 July 1985
• Docket Number: No. 783S263,783S263
• Citation: 480 N.E.2d 881
• Parties: McKinley DUDLEY, Kennis Butler, and Rodney Phillips, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 881

480 N.E.2d 881

McKinley DUDLEY, Kennis Butler, and Rodney Phillips, Appellants, v. STATE of Indiana, Appellee.

No. 783S263.

Supreme Court of Indiana.

July 15, 1985.

James V. Tsoutsouris, Public Defender, Porter County, Joanne Tapocsi, Deputy Public Defender, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendants-Appellants, McKinley Dudley, Kennis Butler, and Rodney Phillips, were tried and convicted by a jury in the Porter County Superior Court and the Honorable Roger V. Bradford imposed their sentences. Kennis Butler and Rodney Phillips were convicted of Robbery, a Class B felony, and Criminal Recklessness, a Class D felony. Each received a sentence of twenty (20) years for Robbery, and four (4) years for Criminal Recklessness: Kennis Butler's sentences to be served consecutively and Rodney Phillips' sentences to be served concurrently. McKinley Dudley was convicted of aiding a robbery, and was further found to be an habitual offender. He was sentenced to a total of fifty (50) years.

Defendants-Appellants now directly appeal their convictions and raise the following fifteen (15) consolidated issues:

1. the granting of the State's Motion in Limine;

2. the denial of Appellant Dudley's speedy trial motion for discharge;

3. the denial of Appellants' Motion for Severance;

4. the denial of Appellants Phillips' and Butler's motions to dismiss Count I, Robbery, and Count II, Criminal Recklessness;

5. the denial of Appellant Phillips' Motion for Severance of Counts;

6. the denial of Appellant Butler's Motion for Psychiatric Examination;

7. the denial of Appellant Phillips' Motion for Appointment of New Counsel;

8. the denial of Appellant Phillips' motions for continuances;

9. certain evidentiary rulings;

10. the denial of several motions for mistrial;

11. prosecutorial misconduct;

12. the failure to order the State to disclose certain evidence;

13. the refusal of Appellants' jury instructions and the giving of the State's jury instructions;

14. insufficiency of the evidence to convict Appellant Butler of Robbery and Criminal Recklessness and Appellant Phillips of Criminal Recklessness; and

15. sentencing of Appellants.

On May 27, 1982, Edward Pointer, Kennis Butler and Rodney Phillips drove an Oldsmobile to Chesterton State Bank to commit a robbery. They had planned the robbery with McKinley Dudley, who had volunteered the use of his car and guns. McKinley followed the Oldsmobile part of the way to the bank, then parked where he was to later switch cars to facilitate his cohorts' escape. Once at the bank, Butler and Phillips, armed with handguns, entered. Butler pointed a gun at teller Kay Leggett, entered the tellers' area and removed approximately $8,835.00. Butler and Phillips then fled to the car where Pointer was awaiting them. The bank notified the Portage Police Department immediately thereafter.

Officers Fred Trathen and Charles Heimberg, having received a radio dispatch about the robbery, observed and followed a car matching the description given over the dispatch. After the officers unsuccessfully attempted to stop the car, a high speed chase ensued. Phillips, sitting in the rear seat, fired four shots at Officer Trathen. The pursued car finally came to a sudden stop on the side of the road where all three passengers unsuccessfully attempted to flee; they were caught shortly thereafter.

I

Appellants argue that by the trial court's granting of the State's Motion in Limine, they were improperly foreclosed from impeaching the following witnesses: Edward Pointer, a co-defendant who plea bargained; Gerri Peters, owner of the Oldsmobile used in the robbery; and Cecil Lewis, an accomplice who was granted immunity. Appellants claim the trial court erred when it held evidence concerning the three witness' criminal activity was inadmissible for impeachment purposes. The general rule is that a witness' credibility may be attacked by questioning him about prior criminal convictions for treason, murder, rape, arson, burglary, robbery, kidnapping, forgery, and wilfull and corrupt perjury along with those crimes involving dishonesty or false statements. Brown v. State, (1984) Ind., 459 N.E.2d 376; Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210. By applying this rule to the facts at hand, we find the trial court properly granted the Motion in Limine.

Edward Pointer received a misdemeanor conviction for not having a gun permit as a result of his plea bargain. This misdemeanor does not fall within the crimes specified in Ashton, supra, nor does it entail dishonesty or false statements. Therefore, it was properly withheld from the jury. Gerri Peters had been convicted of prostitution, which also does not fall within the specified crimes enunciated in Ashton, nor does it involve dishonesty or false statements. Therefore, this conviction was properly withheld from the jury. Finally, Cecil Lewis' drug dealing conviction does not fall within the crimes set out in Ashton, and his parole violation did not result in a conviction. Because criminal acts which do not result in a conviction are inadmissible for purposes of impeachment, Lewis' parole violation was evidence properly withheld from the jury. Jarvis v. State, (1982) Ind., 441 N.E.2d 1. Appellants argue, in the alternative, that these witnesses fell within exceptions to the general rule stated in Ashton. However, Appellants, after citing numerous exceptions, fail to demonstrate how any one of the three witness' prior convictions fall within any of the exceptions. Consequently, we conclude the trial court properly applied the general rule in Ashton by granting the State's Motion in Limine. Appellants have failed to demonstrate error by raising this issue.

II

Appellant Dudley claims the trial court committed reversible error by denying his Speedy Trial Motion for Discharge, because trial was scheduled and held three days beyond the seventy day limit of Ind.R.Crim.P. 4(B). There is no dispute that Appellant Dudley fulfilled all the necessary requirements entitling him to the following protection of Ind.R.Crim.P. 4(B)(1):

"If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within 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 seventy (70) calendar days because of the congestion of the court calendar."

A trial court may, on its own motion, schedule a trial for a day beyond the seventy (70) day period when the congested nature of its calendar precludes a trial date within the early trial frame. Jordan v. State, (1982) Ind., 435 N.E.2d 257. In Loyd v. State, (1980) 272 Ind. 404, 398 N.E.2d 1260, 1265, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105, this Court reasoned:

"The court calendar may be congested by a variety of circumstances, among them the unavailability of essential personnel or physical facilities. We hold that any exigent circumstances may warrant a reasonable delay beyond the limitation of Ind.R.Crim.P. 4, due deference being given to the defendant's speedy trial rights under the rule. The reasonableness of such delay must be judged in the context of the particular case, and the decision of the trial judge will not be disturbed except for an abuse of discretion."

In the instant case, the delay was due to court congestion and unavailability of the trial judge on the seventieth day, which was a Friday. Defendant Dudley's case was heard the following Monday. If the seventieth day fell on the weekend, Ind.R.Crim.P. 4(B)(2) provides that the period is tolled until the next day which is not a Saturday, Sunday, or legal holiday. Defendant's cause was delayed only three days because it could not be heard on Saturday or Sunday. Because the trial court properly justified the extension of time, and we find the period of delay a reasonable period, we are of the opinion the trial judge did not abuse his discretion in this matter. Accordingly, Appellant has failed to demonstrate error in this issue.

III

Appellants next argue that the trial court's denial of a motion for separate trials, made by Appellants Phillips and Butler, was erroneously denied and caused such prejudicial circumstances at trial as to deny Appellants their right to a fair trial. Thus, Appellants seek to have the trial court reversed and to have new and separate trials ordered.

Separate trials are clearly not a matter of right, but are discretionary with the trial judge. Crenshaw v. State, (1982) Ind., 439 N.E.2d 620; Baysinger v. State, (1982) Ind., 436 N.E.2d 96. Once a decision is made regarding joinder or severance, the decision is reviewable only for abuse of discretion. Frith v. State, (1975) 263 Ind. 100, 325 N.E.2d 186. A review of abuse entails looking at what actually happened at trial. Baysinger, supra; Chandler v. State, (1981) 275 Ind. 624, 419 N.E.2d 142.

Appellants Phillips alleges several instances of prejudice at trial due to the fact Appellants were jointly tried. Appellant Phillips argues that he received appointment of a public defender on July 30, 1982 and because of Appellant Dudley's motion for a speedy trial and the corresponding trial date set for September 20, 1982, he was denied adequate time to prepare for trial. We note Appellant has evaded the point, which is to show actual prejudice at trial due to nonseverance. Without a showing of how trial counsel was impaired at trial, no prejudice has been shown, nor relief warranted.

Appellant Phillips' next three alleged instances of prejudice resulting from nonseverance, are also instances Appellant Butler urges prejudiced him. First, Appellants argue Cecil Lewis' following testimony prejudiced them...