Fortson v. State, No. 1277S803

Docket NºNo. 1277S803
Citation269 Ind. 161, 379 N.E.2d 147
Case DateAugust 09, 1978
CourtSupreme Court of Indiana

Page 147

379 N.E.2d 147
269 Ind. 161
Maurice FORTSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 1277S803.
Supreme Court of Indiana.
Aug. 9, 1978.

[269 Ind. 164]

Page 149

William G. Smock, Terre Haute, for appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

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

Page 150

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.

I.

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.
                

[269 Ind. 165]

Page 151

While incarcerated on September 22, 1976, appellant filed his Motion for Early Trial, pursuant to Ind.R.Crim.P. 4(B) which reads:

"(B)(1) Defendant in jail Motion for early trial. 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 [269 Ind. 166] the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule."

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 [269 Ind. 167] 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:

"(D) Discharge for delay in trial When may be refused Extensions of time. If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days,...

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55 practice notes
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • 3 August 1988
    ...Other courts have established more stringent criteria for the admission of evidence of third-party culpability. In Fortson v. Indiana, 269 Ind. 161, 379 N.E.2d 147, 153 (1978), the Court held that "the mere possibility that some third person did the act is not enough. Evidence tending to in......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 November 1980
    ...See Porter v. State, (1979) Ind., 391 N.E.2d 801. See also Lock v. State, supra ; Goodpaster v. State, supra ; Fortson v. State, (1978) 269 Ind. 161, 379 N.E.2d 147. In addition to the testimony set out above, there were many questions asked of Cobb as to whether he had killed Officer Dunig......
  • State v. Harman, No. 14758
    • United States
    • Supreme Court of West Virginia
    • 16 September 1980
    ...E. g., People v. Romero, 593 P.2d 365 (Colo.App.1978); Brown v. United States, 409 A.2d 1093 (D.C.App.1979); Fortson v. State, 379 N.E.2d 147 (Ind.1978); State v. Williams, 575 S.W.2d 838 (Mo.App.1978); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). Where, on the other hand, the testi......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • 9 September 1983
    ...lack of evidence of his remorse cannot be construed as a direct or indirect reference to his failure to testify. Fortson v. State, (1978) 269 Ind. 161, 379 N.E.2d 147. We find no reversible error Defendant next argues that Indiana's death penalty statute is unconstitutional on its face and ......
  • Request a trial to view additional results
55 cases
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • 3 August 1988
    ...Other courts have established more stringent criteria for the admission of evidence of third-party culpability. In Fortson v. Indiana, 269 Ind. 161, 379 N.E.2d 147, 153 (1978), the Court held that "the mere possibility that some third person did the act is not enough. Evidence tending to in......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 November 1980
    ...See Porter v. State, (1979) Ind., 391 N.E.2d 801. See also Lock v. State, supra ; Goodpaster v. State, supra ; Fortson v. State, (1978) 269 Ind. 161, 379 N.E.2d 147. In addition to the testimony set out above, there were many questions asked of Cobb as to whether he had killed Officer Dunig......
  • State v. Harman, No. 14758
    • United States
    • Supreme Court of West Virginia
    • 16 September 1980
    ...E. g., People v. Romero, 593 P.2d 365 (Colo.App.1978); Brown v. United States, 409 A.2d 1093 (D.C.App.1979); Fortson v. State, 379 N.E.2d 147 (Ind.1978); State v. Williams, 575 S.W.2d 838 (Mo.App.1978); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). Where, on the other hand, the testi......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • 9 September 1983
    ...lack of evidence of his remorse cannot be construed as a direct or indirect reference to his failure to testify. Fortson v. State, (1978) 269 Ind. 161, 379 N.E.2d 147. We find no reversible error Defendant next argues that Indiana's death penalty statute is unconstitutional on its face and ......
  • Request a trial to view additional results

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