Easton v. State

• Decision Date: 23 March 1972
• Docket Number: No. 1270S317,1270S317
• Citation: 258 Ind. 204,280 N.E.2d 307,29 Ind.Dec. 698
• Parties: Harold Edgar EASTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 307

280 N.E.2d 307

258 Ind. 204

Harold Edgar EASTON, Appellant, v. STATE of Indiana, Appellee.

No. 1270S317.

Supreme Court of Indiana.

March 23, 1972.

Rehearing Denied May 1, 1972.

Charles W. Symmes, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Boucher, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of entering to commit a felony, in violation of Acts of 1941, ch. 148, § 5, 1956 Repl. Burns Ind.Stat.Ann. § 10--704, I.C. 35--13--4--5. He was sentenced to imprisonment for not less than one nor more than ten years and disfranchised for five years. This appeal presents three questions for review:

(1) Defendant's eligibility for discharge under criminal trial rule 4--A,

(2) Admissibility of testimony of an investigating police officer concerning the description of a suspect as related to him by a witness, and

(3) The sufficiency of the evidence.

(1) Defendant was arrested and incarcerated on March 20, 1970. His trial commenced on September 21, 1970, or one day following the expiration of the six months period allowed by the rule. Defendant's court appointed counsel, however, had filed a motion for a change of judge and a motion for a continuance, both of which had been granted and occasioned delays chargeable to him. Harbaugh v. State (1955), 234 Ind. 420, 126 N.E.2d 576; Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649. He contends, however, that therse delays cannot properly be so charged. With reference tot he change of judge, he maintains that to charge him with the delay requires him to elect between his constitutional guarantees of a speedy trial and a trial by an unbiased court. As to both the change of judge and the continuance, he urges that both requests were made by his court appointed counsel without personal knowledge on his part, that any delay caused thereby would waive his right to trial within six months and that, notwithstanding the general rules that actions of the attorney are those of the defendant (Epps v. State (1963), 244 Ind. 515, 192 N.E.2d 459) he could not be held to a waiver without a showing that it was intelligently and understandingly made.

We think these propositions of the defendant to be untenable for several reasons, the least arguable of which is that while the Constitution guarantees the right to a speedy trial, it does not guarantee one within six months under all circumstances--or for that matter under any circumstances. The six months limitation has been prescribed by this Court as a reasonable time. It is in no sense a constitutional guaranty and is subject to reasonable exceptions, limitations and modifications, as we shall determine necessary to carry out its constitutional purpose.

Further, with reference to Defendant's application for a change of judge, it was neither predicated upon nor granted by reason of bias. It was a simple motion under Criminal Rule 12. It stated no cause and it as sustained without comment. We will not presume bias from the mere filing of a motion for change of judge.

(2) One of the investigating officers was permitted to testify over Defendant's objection as follows:

'Question: Did you say you noted the description in your notebook?

Answer: I did.

Question: And what was that?

Mr. Neal: I am going to object on the ground that any description given to him out of court is complete heresay (sic) information.

The Court: Well, it is in his line of investigative duties if he takes a description whether it is pertinent or not. The objection will be overruled.

Question: What was that description?

Answer: She described a man that she said walked across the porch as short, stocky, colored male, in his thirties, with bushy hair and carrying a shopping bag.'

In Wells v. State (1970), Ind., 261 N.E.2d 865, we said:

'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. (McCormick, Evidence § 225).' 261 N.E.2d at 869.

The testimony objected to was a statement made out of court and offered as an assertion to show the truth of the matter asserted, namely the description of a suspect. It rested for its value upon the credibility of the out-of-court asserter, who was not under oath, not subject to confrontation by the jury and most importantly, not subject to cross examination by the defendant. It should have been excluded. However, we do not see how its admission could have affected the substantial rights of Defendant, hence the application of Trial Rule 61 precludes a reversal upon this specification.

'No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order in anything done or omitted by the court or by any of the parties is ground for granting relief under a motion to correct errors or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

The out-of-court assertions related by the witness came from Jessie Nash, who testified at the trial and there positively identified Defendant as the person she had observed, at the approximate time of the break-in, come from the premises of the prosecuting witness, carrying a blue and white shopping bag, walk across her porch, down the steps and proceed through the alley-way, towards the next street. The imporperly admitted out-of-court assertion was that she saw a stocky colored male, in his thirties, with bushy hair and carrying a shopping bag, walk across her porch. Although there is no testimony that this occurred at the approximate time of the break-in, we think that to be the only inference that may reasonably be drawn. Nevertheless, it must be regarded as harmless, for one of two reasons. There is no description of the defendant in the record, except such as may be inferred from the objectionable testimony. If the defendant did not match that description, then obviously the admission of such testimony would have been favorable to him, as indicative that he was not the person whom Mrs. Nash had described to the police officer. It has been previously held that the admission of incompetent evidence is harmless, where the finding on such issue was in favor of the party objecting. Robbins v. Masteller, et al. (1897), 147 Ind. 122, 46 N.E. 330. If, however, the defendant's appearance matched the description related by Mrs. Nash to the officer, it must, nevertheless, be regarded as harmless error; because it merely related to the issue of the identity of the person seen by her walking across her porch, and this had been clearly established by her properly admitted and undisputed testimony. We have long held that the admission of improper evidence which tends only to disclose a fact clearly proved by other legitimate and uncontradicted evidence is harmless error. Adams v. Sate (1946), 224 Ind. 472, 69 N.E.2d 21; Shockley v. State (1924), 194 Ind. 321, 142 N.E. 850.

(3) Upon the issue of the sufficiency of the evidence, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706; Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d 502.

The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was...