Everroad v. State, No. 03A01-9005-CR-179

Docket NºNo. 03A01-9005-CR-179
Citation570 N.E.2d 38
Case DateApril 15, 1991
CourtCourt of Appeals of Indiana

Page 38

570 N.E.2d 38
Garnet D. EVERROAD and Gregory K. Everroad, Appellants-Defendants,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 03A01-9005-CR-179.
Court of Appeals of Indiana,
First District.
April 15, 1991.

Page 42

Kris Meltzer, Bate, Harrold & Meltzer, Shelbyville, for appellants-defendants.

Linley E. Pearson, Atty. Gen. and Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATEMENT OF THE CASE

RATLIFF, Chief Judge.

Garnet D. Everroad and Gregory K. Everroad (Everroads) appeal their convictions of Dealing in Cocaine or a Narcotic Drug, 1 a class A felony; Dealing in Marijuana, 2 a class D felony; Dealing in Hashish, 3 a class D felony; and two (2) counts of Dealing in a Schedule I Controlled Substance, 4 a class B felony. We affirm in part, reverse in part, and remand for resentencing.

ISSUES

The Everroads have raised twenty-two (22) issues for our consideration. We consolidate and restate them as follows:

1. Were the Everroads entitled to discharge pursuant to Ind.Crim.R. 4?

2. Did the trial court err in denying the Everroads' motion to suppress evidence seized from their mother's house?

3. Were the Everroads denied their right to due process and a fair trial when the investigating police officers failed to test the seized contraband for fingerprints?

4. Did the trial court err in allowing the attorneys who originally represented the Everroads to represent their co-defendants, and in trying all the defendants together?

5. Did the trial court err in summarily denying the Everroads' motions for change of venue and change of judge?

6. Did the trial court err in summarily denying the Everroads' motion to dismiss based on a challenge to the constitutionality of Indiana's Controlled Substances Act 5?

7. Did the trial court err in arraigning the Everroads on the day trial was scheduled to begin?

8. Did the trial court err in failing to conduct voir dire in small, isolated groups?

9. Did the trial court err in refusing to dismiss juror Elifritz for cause?

10. Did the trial court err in failing to grant the Everroads' various motions for mistrial?

11. Did the trial court err in allowing the admission of various controlled substances despite the Everroads' challenge of the chain of custody?

Page 43

12. Were the Everroads entitled to a new trial because of various communications with the jury during deliberations?

13. Was the evidence sufficient to sustain the jury's guilty verdicts?

14. Did the trial court err in convicting and sentencing the Everroads on five (5) counts of drug-related offenses, when the counts were founded upon the violation of three (3) statutory provisions?

15. Was the trial court's imposition of consecutive sentences proper?

16. Did the trial court err in requiring the sentence in the present case be served consecutively with any sentence imposed in any other court?

17. Were the Everroads denied the effective assistance of trial and appellate counsel?

18. Were the Everroads denied their due process right to a speedy appeal?

FACTS

The facts most favorable to the jury's guilty verdicts indicate that on the evening of October 26, 1979, police officers executed a search warrant for a stolen television set at the home of Norma Jean Everroad in Bartholomew County. Norma Jean, Nancy Calendar, Garnet, and Greg were in the house when the police arrived. The search for the television was unsuccessful; however, the officers observed various items throughout the house that appeared to be contraband. A second search warrant was issued to permit a search for controlled substances.

The second search of the home resulted in the seizure of a large quantity of controlled substances, including cocaine, marijuana, hashish, LSD, and methaqualone. The police also seized a microscope, a triple beam scale, and other paraphernalia.

Greg and Garnet were charged by information with dealing in cocaine, dealing in marijuana, dealing in hashish, and two (2) counts of dealing in a schedule I controlled substance. A jury trial resulted in their conviction of all five (5) counts, and they were sentenced to a total of fifty-four (54) years incarceration.

The Everroads now appeal. Additional relevant facts will be added in our discussion of the issues.

DISCUSSION AND DECISION

Issue One

The Everroads claim they were entitled to discharge pursuant to Ind.Crim.Rule 4(C). When the Everroads were arrested, Crim.R. 4 provided:

"(C) Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; 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 period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged."

Any delays caused by a defendant's acts extend the one-year time limitation by the length of such delays. Andrews v. State (1982), Ind., 441 N.E.2d 194, 199. Although both the Everroads and the State refer to October 30, 1979, as the date the action commenced, we find the one-year period began to run when the Everroads were arrested and charged on October 29, 1979. Crim.R. 4(C). Absent any delays chargeable to the Everroads, their trial should have begun no later than October 29, 1980; however, trial did not begin until December 7, 1981, some seven hundred seventy (770) days later. 6 We therefore must determine to whom the various delays are to be attributed.

On October 30, 1979, upon the Everroads' motion, the trial court continued

Page 44

their arraignment until November 16, 1979. This delay, prior to the setting of a trial date, is not chargeable to the Everroads. See Morrison v. State (1990), Ind., 555 N.E.2d 458, 461; State ex rel. O'Donnell v. Cass Superior Court (1984), Ind., 468 N.E.2d 209, 211. The Everroads requested a change of judge on November 16, 1979, and Special Judge Westhafer qualified and assumed jurisdiction of the case on December 11, 1979. This delay of twenty-five (25) days clearly is chargeable to the Everroads. State v. Tomes (1984), Ind.App., 466 N.E.2d 66, 69.

On February 27, 1980, a trial date of June 2, 1980 was set. The Everroads filed a motion for continuance and a motion to suppress on May 13, 1980. The court continued the trial date and set the motion to suppress for hearing on June 2, 1980. On appeal, the State, citing Battle v. State (1981), 275 Ind. 70, 415 N.E.2d 39, claims the Everroads are chargeable with all the time from June 2, 1980, to July 20, 1981, the date for which trial was rescheduled following the denial of the motion to suppress. The State's reliance on Battle is misplaced. In Battle, "interim continuances during the evidentiary hearings on the motion to suppress were granted on the trial court's motions due to a congested court calender [sic] or as a result of defense counsel's other trial commitments. These delays were clearly the result of defendant's actions in filing his motion to suppress and requesting full evidentiary hearings on it prior to trial." Id. at 73, 415 N.E.2d at 41.

Such is not the case here. On May 28, 1980, the State filed a motion for continuance. The court granted the State's motion, and rescheduled the hearing on the Everroads' motion to suppress for July 16, 1980. Up to this point, there had been no calculable delay chargeable to the Everroads as a result of their motion to suppress. The Everroads filed a motion to continue the July 16, 1980, hearing. The court granted the motion and reset the hearing for July 29, 1980. This thirteen (13) day delay, from July 16 to July 29, is chargeable to the Everroads. It appears that July 29, 1980, was allowed to pass without formal action by either party, and the record fails to indicate why the scheduled hearing was not held on that day. In light of the silent record, we may not charge the Everroads with any delay here. Morrison, 555 N.E.2d at 461; Pillars v. State (1979), 180 Ind.App. 679, 684-85, 390 N.E.2d 679, 683, trans. denied. Thus far, the Everroads are chargeable with a delay of thirty-eight (38) days.

Under Crim.R. 4(C), the State had until December 6, 1980 to bring the Everroads to trial (October 29, 1980, plus thirty-eight days). Because December 6, 1980 was a Saturday, the Everroads' trial should have begun on Monday, December 8, 1980. However, on October 22, 1980, the court set the hearing on the motion to suppress for December 9, 1980, a date clearly beyond the time limit imposed by Crim.R. 4(C). It is only reasonable to presume the Everroads knew their trial could not take place until still later; thus, their failure to object to the setting of the December 9, 1980 hearing constitutes a waiver of the delay. State ex rel. Wernke v. Super. Ct. of Hendricks County (1976), 264 Ind. 646, 650, 348 N.E.2d 644, 647. Thus, the forty-eight (48) day delay between October 22, 1980, and December 9, 1980, is chargeable to the Everroads. The delay chargeable to the Everroads now totals eighty-six (86) days.

The hearing on the Everroads' motion to suppress was held on December 9, 1980, and denied by the court on March 4, 1981. This delay of eighty-five (85) days is chargeable to the Everroads. See Battle, 275 Ind. at 70, 415 N.E.2d at 41. This brings the total number of days chargeable to the Everroads to one hundred seventy-one (171). The State thus had until April 18, 1981, to bring the Everroads to trial (October 29, 1980, plus 171 days).

On March 27, the court set a trial date of July 20, 1981. The Everroads filed a motion for discharge on March 19, 1981, which was denied by the trial court on April 15,...

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20 practice notes
  • Rose v. US, No. 91-CF-499.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 5, 1993
    ...uncle testified at trial that he let appellant into the apartment that day after appellant knocked. 12 See also Everroad v. State, 570 N.E.2d 38, 45-46 (Ind.App.1991) (appellants had no standing to challenge seizure of contraband from their mother's house where one only occasionally spent t......
  • State v. Conn, No. 15109
    • United States
    • Supreme Court of Connecticut
    • July 4, 1995
    ...Materials not possessed by the government cannot be suppressed within the meaning of Brady." [Citation omitted.]; Everroad v. State, 570 N.E.2d 38, 46-47 (Ind.App.1991), superseded on other grounds, 590 N.E.2d 567 (Ind.1992) (rejecting claim that failure to test contraband for fingerprints ......
  • Milner v. Commissioner of Correction, (AC 19130)
    • United States
    • Appellate Court of Connecticut
    • June 19, 2001
    ...violation of due process within doctrine of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. App. 1991) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory......
  • Frasier v. State, No. 07A01-0207-CR-239.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2003
    ...the issuing magistrate. In such instance it cannot be said that the executing officer is acting in "good faith." See Everroad v. State, 570 N.E.2d 38, 57 (Ind.Ct.App.1991) (Sullivan, J., concurring in part and dissenting in part), superseded by Everroad v. State, 590 N.E.2d 567 (Ind.1992) (......
  • Request a trial to view additional results
20 cases
  • Rose v. US, No. 91-CF-499.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 5, 1993
    ...uncle testified at trial that he let appellant into the apartment that day after appellant knocked. 12 See also Everroad v. State, 570 N.E.2d 38, 45-46 (Ind.App.1991) (appellants had no standing to challenge seizure of contraband from their mother's house where one only occasionally spent t......
  • State v. Conn, No. 15109
    • United States
    • Supreme Court of Connecticut
    • July 4, 1995
    ...Materials not possessed by the government cannot be suppressed within the meaning of Brady." [Citation omitted.]; Everroad v. State, 570 N.E.2d 38, 46-47 (Ind.App.1991), superseded on other grounds, 590 N.E.2d 567 (Ind.1992) (rejecting claim that failure to test contraband for fingerprints ......
  • Milner v. Commissioner of Correction, (AC 19130)
    • United States
    • Appellate Court of Connecticut
    • June 19, 2001
    ...violation of due process within doctrine of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. App. 1991) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory......
  • Frasier v. State, No. 07A01-0207-CR-239.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2003
    ...the issuing magistrate. In such instance it cannot be said that the executing officer is acting in "good faith." See Everroad v. State, 570 N.E.2d 38, 57 (Ind.Ct.App.1991) (Sullivan, J., concurring in part and dissenting in part), superseded by Everroad v. State, 590 N.E.2d 567 (Ind.1992) (......
  • Request a trial to view additional results

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