Fortson v. State

• Decision Date: 07 February 1979
• Docket Number: No. 977S662,977S662
• Citation: 270 Ind. 289,385 N.E.2d 429
• Parties: Stanford FORTSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 429

385 N.E.2d 429

270 Ind. 289

Stanford FORTSON, Appellant, v. STATE of Indiana, Appellee.

No. 977S662.

Supreme Court of Indiana.

Feb. 7, 1979.

William K. Teeguarden, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged and convicted of first degree murder following a trial by jury and sentenced to life imprisonment pursuant to Ind.Code § 35-13-4-1(a). Counsel was appointed to prosecute this appeal and in so doing has presented seven issues:

(1) whether error occurred when the trial court denied appellant's petition for discharge for delay in trial based upon Ind.R.Crim.P. 4;

(2) whether the cumulative effect of several incidents of prosecutor misconduct denied a fair trial (3) whether the trial court erred in giving repetitive instructions on the aiding and abetting statute;

(4) whether an instruction regarding the subject of aiding and abetting in the commission of an offense was erroneous;

(5) whether an instruction tendered by the defense on the subject of aiding and abetting was erroneously refused;

(6) whether a new trial should be granted on the basis of newly discovered evidence; and

(7) whether an incriminating statement of appellant was properly admitted.

The body of Ralph Benjamin was found in the trunk of his car on August 24, 1976. The cause of death was a gunshot wound to the head. The car was located in a weedy field in or near the city of Terre Haute. Appellant and his older brother Maurice Fortson together with one Eddie Lewis were returning to Terre Haute from Gary, Indiana on the night of August 24, 1976, when they ran out of gas. They came upon Mr. Benjamin who was parked along the street. Maurice Fortson was armed with a .38 caliber pistol, and the three seized the car. Mr. Benjamin's wallet and watch were taken, and he was locked in the trunk, and the three continued in the car on their way to Terre Haute. Upon arrival there they parked the car in a weedy field. The trunk was opened and Maurice Fortson shot the victim. The three then attempted to remove their fingerprints from the car. Within hours at 8:00 a. m. on the morning of the 24th of August, appellant told his cousin that he had been present during the abduction and killing of Benjamin. Within several days he had told his sister that they had killed Benjamin. The cousin and sister testified to these admissions by appellant. Within a short time after his arrest, appellant gave a statement to the same effect which was admitted in evidence at the trial.

(I)

Appellant was charged on September 22, 1976, and on that same date filed a motion for a trial within seventy days pursuant to the provisions of Ind.R.Crim.P. 4. The trial was originally set for November 29, 1976, a date within the seventy day period; however, that trial date was postponed on motion of the State, and over objection by appellant was reset for trial on a date thirty-three days beyond the seventy day period, namely, on January 3, 1977. Appellant challenged the delay in bringing him to trial by filing a motion for discharge on December 30, 1976, which motion was overruled by the court. Among the allegations in the State's motion for a postponement of the trial and its accompanying memorandum were those calling the court's attention to the congestion of the court's calendar. It made specific mention of ongoing court criminal proceedings and more than a dozen criminal jury trials scheduled for the period between November 29, 1976 and December 31, 1976. Appellant by written motion opposed the continuance on this basis by contending that the alleged congestion was artificial and consisted largely of cases which the State had no intention to try and which had been perennially set and reset for trial. Following argument of counsel the trial court granted the postponement.

Criminal Rule 4(B)(1) expressly provides for an exception to the requirement of discharge for delay in trial beyond the required seventy day limitation, "where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar."

The challenged denial of discharge to appellant was based upon this exception for docket congestion. The fact of reliance by the trial court upon the exception, while not noted in its order, is shown by the content of appellant's motion for discharge which expressly identified the granting of the continuance of the November 29, 1976 trial date as having resulted in the impermissible delay in trial beyond the time limited by the rule. The State's earlier motion for that continuance had in turn been predicated in substantial and sufficient part upon the allegation that the court's docket was overburdened at the time. Such allegation was sustained by specific supportive statements. There was no error in denying appellant discharge under the terms of the rule.

(II)

Appellant cites several instances of prosecutorial misconduct and argues that their cumulative impact served to deny appellant a fair trial. We acknowledged this type of legal claim in Maldonado v. State, (1976) 265 Ind. 492, 355 N.E.2d 843, where we said:

"4. Even if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result. Robinson v. State, (1973) 260 Ind. 517, 297 N.E.2d 409; Garrett v. State, (1974) 157 Ind.App. 426, 300 N.E.2d 696." 265 Ind. at 499, 355 N.E.2d at 848.

Appellant contends that during voir dire examination the prosecutor implied that a person could be found guilty as an accessory before the fact by merely being present at the scene of a crime. There is no statement in the record before us from which such implication can fairly be said to have arisen. We, therefore, dismiss this contention from our consideration of this issue. Appellant points to further instances arising during voir dire opening statement and closing argument which include: (1) mention of penalties and suspended sentence under inappropriate circumstances, (2) a statement to a prospective juror that a criminal prosecution is commenced when a judge is convinced that probable cause exists to show that "someone" committed the crime, (3) a statement implying that the rules of evidence to be applied at trial would prevent the jury from hearing all of the evidence, (4) a statement that persons have a legal duty to report crimes to authorities, (5) reference to the evidence supporting a crime not charged, i. e., aiding and abetting in an abduction, (6) a general statement that the jury had heard evidence which had not been contradicted, and (7) reference to the homicide as a "murder" and to the defendant as a "criminal". Objections were made to these instances, which were sustained. Appropriate admonitions requested were given, and motions for mistrial based upon them were overruled.

No deliberate scheme has been shown to have existed here by which the prosecutor sought to improperly prejudice the jury. The mistakes by the prosecutor stemmed for the most part from a lack of preparation. The judge maintained proper control of the proceedings and afforded the defendant with immediate relief from these instances where sought. The prosecutor did not insistently repeat acts of misconduct, once they were brought to his attention. None of the specific instances were of a highly inflammatory nature, and the State's case against appellant was not a weak one, including as it did appellant's own version of his participation in the killing of Mr. Benjamin. We find that the accumulative effect of misconduct by the prosecutor did not deny appellant a fair trial.

Appellant also includes within this issue the claim that the Fourteenth Amendment of the United States Constitution and due process of law required that the court and prosecutor reveal to the jury that the prosecutor had requested a continuance in a co-defendant's case. There was no constitutional error when this matter was not disclosed to the jury as it was not material to the issue of guilt or innocence. United States v. Agurs, (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342.

(III)

Appellant, relying upon this Court's opinion in Robbins, Executor et al. v. Fugit, (1920) 189 Ind. 165, 126 N.E. 321, complains that the court erred in giving four instructions on the subject of aiding and abetting the commission of a felony. In that case we said:

"When an instruction is once given which fully covers a subject, it should not be repeated. Such needless repetition amounts to an argument on the part of the court and may mislead the jury." 189 Ind. at 168, 126 N.E. at 322.

The first such instruction in the case at bar is primarily the text of the statute. The second placed the legalistic language of the statute in more common parlance; and the third related the subject to the burden of the State to prove guilt beyond a reasonable doubt. The fourth such instruction related the subject to specific example of acts which were open to the jury to consider in determining guilt as an aider and abettor. A discrete legal purpose was served by each of the instructions and we do not believe they would have confused or misled the jury.

(IV)

Appellant objected to State's Instruction No. 4 which advised the jury:

"The presence of a person at the scene of the commission of a crime and companionship with another person engaged in the commission of the crime and a course of conduct before and after the offense are circumstances which may be considered in determining whether such person aided and abetted the commission of such crime."

This instruction states the law as it has been pronounced to date. Schmidt v. State, (1970) 255 Ind. 443, 265 N.E.2d 219. However, appellant addresses an argument against the instruction which has not heretofore been considered. He contends that the...