Epps v. State

• Decision Date: 23 September 1963
• Docket Number: No. 30102,30102
• Citation: 192 N.E.2d 459,244 Ind. 515
• Parties: Elbert EPPS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 459

192 N.E.2d 459

244 Ind. 515

Elbert EPPS, Appellant, v. STATE of Indiana, Appellee.

No. 30102.

Supreme Court of Indiana.

Sept. 23, 1963.

Rehearing Denied Nov. 22, 1963.

James R. Martin, Cook, Bayliff, Mahoney & Martin, Curtis W. Roll, Kokomo, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, David S. Wedding, Deputy Attys. Gen., Indianapolis, for appellee.

MYERS, Chief Justice.

This is an appeal from a conviction of murder in the first degree. Appellant was indicted by the Grand Jury of Howard County, Indiana, for murder while in the perpetration of a robbery, which is declared to be first-degree murder according to the statutes of Indiana (§ 10-3401, Burns' Ind.Stat., 1956 Replacement). He was tried before the Howard Circuit Court by a jury, found guilty and sentenced to life imprisonment. A motion for new trial was filed, which was overruled. This appeal followed.

The assignment of errors alleges error in that the court overruled the motion for new trial, overruled the motion to be discharged for lack of prosecution, and admitted over objection certain evidence at the hearing on the motion to discharge.

The Argument section of appellant's brief is divided into seven specifications which incorporate statements of error set forth in the motion for new trial and in the assignment of errors.

Specification I claims that the court erred in overruling the appellant's motion to discharge for lack of prosecution and in allowing certain evidence to be admitted over objection in the hearing on this motion. The facts relating to this are as follows: Appellant was placed under arrest on November 6, 1959, which was the 47th judicial day of the September Term of Court, 1959. The terms of the Howard Circuit Court commence on the second Mondays of January, April and September, to continue as long as necessary (§ 4-332, Burns' Ind.Stat., 1946 Replacement). Appellant was confined in the Howard County Jail during the remainder of the September Term, 1959, the January Term, 1960, and through the April Term, 1960, until the September Term, 1960, when he was tried on October 17, 1960, and sentenced on November 16, 1960. He claims this to be in violation of his constitutional and statutory rights.

Art. 1, Sec. 12, of the Constitution of Indiana provides that a person charged with a crime has the right to be tried 'speedily, and without delay.' This section has been implemented by statute which says, in part, as follows:

'And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two terms after the term at which the indictment was found or the affidavit first filed; 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 terms: * * *.' § 9-1402, Burns' Ind.Stat., 1956 Replacement.

On September 13, 1960, appellant filed his motion for discharge, alleging that from the date of appellant's arrest, indictment, and up to the filing of the motion for discharge, more than two full terms of Howard Circuit Court had elapsed, and that no delay was caused by appellant in preventing the cause from being tried, either by motion for continuance or otherwise. An affidavit in reply by the State together with an answer in reply to this affidavit by appellant put the matter at issue. It was set for hearing on October 7, 1960.

From the evidence heard therein, the record reveals that appellant was arrested on November 6, 1959; that on January 6, 1960, which was the 98th judicial day of the September Term, 1959 (and the next to the last day of the term), the Grand Jury filed its felony-murder indictment against appellant; that on January 13, 1960, the court appointed counsel to represent appellant as his attorney; that shortly thereafter, before the end of January, 1960, the Prosecutor had a conversation with appellant's counsel, in the court room, before the regular Judge, about setting a date for the trial of this cause, and counsel stated he was planning to take an extended vacation in Florida for at least two months and did not want to set the case quickly; that it was agreed to wait until appellant's counsel returned before setting it for trial; that after his return, the Prosecutor and appellant's counsel met in the court room of the Howard Circuit Court on April 25th, where there was a conference held before the regular Judge concerning the setting of this case for trial. There was testimony that at this meeting appellant's counsel and the Prosecutor stood before the Judge and checked their calendar dates from Little diary books which each had. Several dates were mentioned and were found objectionable. Appellant's counsel insisted that it would take two weeks to try this case because of it being a first-degree murder case and that it would take at least a week to select a jury. The regular Judge went through his calendar and said it could not be tried accordingly until the fall term of court. The Prosecutor stated that the Judge suggested October 17, 1960, and 'that was fine' with him. The Judge then asked appellant's counsel if it was all right with him, but counsel said nothing. At a later date, in discussing the matter, appellant's counsel referred to the fact that the case was set for trial on October 17th. Previous to this meeting, appellant's counsel had requested the court to give him assistance in the defense of the case. Mr. James R. Martin was appointed assistant counsel on April 5, 1960.

Appellant alleges error in that the court overruled objections to the testimony of various witnesses which brought out these facts. These witnesses consisted of a newspaper reporter, the court reporter, the court bailiff and the prosecuting attorney. The objections, in general, were that this evidence was irrelevant and immaterial because the setting of a trial date in a criminal case is a judicial act to be undertaken by the court; that the vacations of counsel would have no bearing on the court performing its judicial duty. It is his contention that there is an absolute duty upon the State, because of the Constitution and the implementary statute, to set these criminal cases for trial before the two-term period has expired, and that it is not the obligation of a defendant in a criminal case to insist on this as a prerequisite. Zehrlaut v. State (1951), 230 Ind. 175, 102 N.E.2d 203, is cited as authority, in which it was stated by this court that it is the right of an accused to remain silent while under recognizance, and it is the duty of trial courts and prosecuting attorneys to see that a defendant is brought to trial, within the appropriate sections of the Indiana Constitution and § 9-1403, Burns' Ind.Stat., 1942 Replacement. (This section is similar to § 9-1402, Burns' Ind.Stat., 1956 Replacement, in that it refers to persons held by recognizance rather than to persons held in jail.)

Appellee contends that the delay was caused by appellant's acts and so the ruling of the trial court was justified. It is admitted that appellant filed no motions for continuance after his arrest and indictment. At the hearing on the motion for discharge, appellant filed exhibits tending to show that during the January and April Terms, 1960, of court there were numerous dates 'consumed by the court in doing nothing.' The old adage that hindsight is better than foresight applies to trial courts in so far as their business is concerned. A trial court judge may have a full calendar for the next six months at one particular date, and yet find that, at a later date, trials, hearings and arguments evaporate, disappear and are taken off the calendar and leave the court with time on its hands. The regular Judge in this case projected his calendar on April 25, 1960, to October 17, 1960. Appellant's counsel wanted two continuous weeks for the trial of this cause. According to the Judge's calendar at that time, there would not be two weeks for a trial until October 17, 1960. What happened to the Howard Circuit Court's calendar after April 25, 1960, cannot be controlling. The evidence submitted by the Clerk as to how many days the court was actually trying cases and hearing other matters up until October 17, 1960, cannot be material due to the settlement, postponement and dismissal of cases which could have taken place after January 6, 1960. Thus, the allegation by appellant that there was sufficient time to try the case must fail.

As to appellant's contention that the delay was not caused by his act, we must look at his counsel's actions following his appointment as such. First, he requested of the Prosecutor that nothing be done until he returned from an extended Florida vacation; then he requested additional counsel to help him. At the April 25th meeting in court, he knew the purpose of the meeting was to select a trial date. Apparently several dates did not meet with his approval, as was the case also with the Prosecutor. Counsel said it would take two weeks to try the case. The Judge asked him if October 17, 1960, would be satisfactory. The redord shows that appellant's counsel did not answer, and the Prosecutor admits this, but later counsel referred to the case as having been set for October 17, 1960, The regular Judge apparently thought the date was agreed upon between the parties when he made an order book entry on October 6, 1960, setting the cause for trial on October 17th, because he refers to the previous agreement made between the Prosecutor and appellant's attorneys during the April Term, 1960.

These actions on the part of appellant's counsel indicate a delay in the trial. In the hearing on a motion to discharge such as this, it is the defendant's burden to show that the delay complained of was caused by the...