Fortson v. State
| Decision Date | 09 August 1978 |
| Docket Number | No. 1277S803,1277S803 |
| Citation | 269 Ind. 161,379 N.E.2d 147 |
| Parties | Maurice FORTSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William G. Smock, Terre Haute, for appellant.
Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Fortson and two others were charged by information with the shooting death of Ralph Benjamin in Terre Haute. After the trial court granted a motion for a separate trial, appellant was tried to a jury in Vigo Circuit Court. On April 2, 1977, appellant was convicted of first-degree murder and sentenced to life imprisonment. The evidence against the appellant consisted primarily of an accomplice's testimony. The accomplice, Eddie Lewis, named appellant as his partner in the crime and testified in detail as to the murder in question.
Fortson argues five errors in the proceedings of his trial below: (1) that he was denied his right to a speedy trial; (2) that the court erred in permitting the prosecutor to ask a witness the outcome of the trial of one of appellant's confederates; (3) that it was error not to allow the defense to introduce evidence tending to implicate other individuals; (4) that during final argument the prosecutor improperly implied to the jury that the appellant did not take the witness stand, and; (5) that during final argument the prosecutor discussed the sentences for first and second degree murder.
Set forth chronologically, the relevant facts surrounding appellant's Motion for Early Trial are as follows:
September 22, 1976 Appellant, his brother, Stanford
Fortson, and Eddie Lewis were
charged with first-degree murder
Appellant filed his Motion for
Early Trial
October 16, 1976 Eddie Lewis escaped from the Vigo
County Jail
October 20, 1976 Appellant filed his Motion for
Severance
November 4, 1976 The trial court continued appellant's
Motion for Severance under
advisement; trial set for November
29, 1976.
November 5, 1976 Appellant filed his Motion for
Change of Judge.
November 8, 1976 The Honorable Robert Howard Brown,
Special Judge, selected and qualified.
November 15, 1976 Appellant's Motion for Severance
denied.
November 19, 1976 State filed its Motion for Continuance
based, inter alia, on congestion of
the trial court's calendar.
November 23, 1976 State's Motion for Continuance
granted and cause continued to
January 3, 1977.
November 28, 1976 Appellant and state joined in Motion
for Severance which motion was granted;
State elected to try Stanford Fortson
first and moved to continue appellant's
case to a later date.
December 29, 1976 Appellant's trial set for January
13, 1977.
January 11, 1977 Appellant was released on his own
recognizance; the trial court granted
a 90 day extension pursuant to Ind.
R. Crim. P. 4(D) due to the absence
of Eddie Lewis; Appellant's cause
set for trial on April 4, 1977.
January 12, 1977 Eddie Lewis was recaptured in Gary.
March 30, 1977 Appellant's trial began.
While incarcerated on September 22, 1976, appellant filed his Motion for Early Trial, pursuant to Ind.R.Crim.P. 4(B) which reads:
In his application for discharge, appellant contended that the time limitations of this rule were violated for the following reasons: (1) there were no delays in the proceedings which were chargeable to appellant; (2) the continuances granted to the state on November 23, 1976, and January 11, 1977, were improperly ordered, and; (3) the release of appellant on his own recognizance did not deactivate the operation of Rule 4(B). A careful review of the record in this case shows that appellant's contentions are without merit.
On November 19, 1976, the state filed a timely motion for continuance which alleged congestion of the court's calendar. The trial court granted the motion and continued the case to January 3, 1977. Congestion of a trial court's calendar is a legitimate basis for extending the time periods of Rule 4. Harris v. State (1971), 256 Ind. 464, 269 N.E.2d 537; Ind.R.Crim.P. 4(B)(1), Supra. Thus, it was not error to grant this continuance.
On December 28, 1976, and before the trial date of January 3, 1977, the appellant joined the state in a motion to sever his trial from that of his brother, Stanford Fortson. Upon severance, the state elected to try Stanford Fortson on the January 3 setting and appellant's case was continued to January 13 subject to the completion of the first trial. The appellant objected to the new trial date but not to the severance. The ten day delay from January 3 to January 13 was a direct result of the joint motion for severance and as such, is charged to appellant. State v. Hawley (1971), 256 Ind. 244, 268 N.E.2d 80. The seventy day period of Rule 4(B) was thus extended ten days. Ind.R.Crim.P. 4(F).
Appellant next argues that the continuance granted on January 11, 1977 was improper. The record shows that on that date appellant was released on his own recognizance from the murder charge and was remanded to the custody of the sheriff in connection with a related juvenile offense and two attempted jail escape charges. Appellant's trial was then continued to April 4, 1977, due to the fact that Eddie Lewis, an essential state's witness, had not yet been recaptured following his escape from the Vigo County Jail on October 16, 1976. Appellant contends that this continuance should not have been granted since the affidavit requirements of Ind.R.Tr.P. 53.4 were not followed, nor was Lewis' name stated upon the charging information as required by Ind.Code § 35-3.1-1-2(c) (Burns 1975).
The absence of an essential witness through no fault of the state has been held by this court to be good cause for extending the time period requirement for a speedy trial. Gross v. State (1972), 258 Ind. 46, 278 N.E.2d 583. This continuance was granted in accordance with Ind.R.Crim.P. 4(D) which states:
Appellant's reliance upon Trial Rule 53.4 is unfounded. The Indiana rules of trial procedure apply in criminal cases only insofar as they do not conflict with specific rules of criminal procedure. Ind.R.Crim.P. 21. Since the continuance arose in the context of appellant's application for discharge under the speedy trial rules, the provisions of Criminal Rule 4(D) must control. This rule only requires that the trial court be satisfied that the state has made reasonable efforts to procure missing evidence and that there is just cause to believe that such evidence can be had within ninety days. The trial judge expressed such satisfaction when he stated in his findings of fact and law following denial of appellant's application for discharge:
"As to specification forty-three (43), the Court finds that the State of Indiana was not negligent, reckless, unlawful, nor was it without due regard to its duty to bring the defendant Maurice Fortson to trial promptly, speedily, and without delay . . . that when the State of Indiana filed its Motion for Continuance on January 11, 1977, the Chief Deputy Prosecutor was aware that the Terre Haute, Indiana Police Dept. would, within the succeeding few days, send officers to Gary Indiana in an attempt to locate and apprehend the said Eddie Lewis. . . ."
Thus, the requirements of Criminal Rule 4(D) were satisfied.
Appellant's reliance upon Ind.Code § 35-3.1-1-2(c) is also without merit. Fortson asserts that this statute prohibited the trial court from granting a continuance because the name of Eddie Lewis did not appear on the information as a state's witness. In fact, the name Eddie Lewis appeared on the face of the information twice as a co-defendant. Moreover, the record discloses that appellant's attorney was informed on at least one occasion of the possibility that Lewis might testify against appellant in exchange for a plea agreement. Thus, appellant was well aware of Lewis' identity and status as a potential state's witness and cannot reasonably claim to have been prejudiced by the state's failure, if any, to list Lewis as a witness on the information.
In summary, the seventy day period began to run when appellant filed his Criminal Rule 4(B) motion on September 22, 1976. That period was tolled on ...
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