Fry v. State

Citation521 N.E.2d 1302
Decision Date26 April 1988
Docket NumberNo. 49S00-8702-CR-243,49S00-8702-CR-243
PartiesJames E. FRY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A bench trial resulted in appellant's conviction of Burglary, a Class B felony, for which he received a sentence of ten (10) years, and Theft, a Class D felony, for which he received a sentence of two (2) years, the sentences to run consecutively. Appellant's ten-year sentence was enhanced by twenty (20) years due to a finding that he is an habitual offender.

The facts are: At approximately 11:00 p.m., on March 29, 1986, Don Quinatte heard a loud pounding noise coming from outside his home. He walked to his front porch and saw appellant and another man, later identified as Charles Secrest, pounding on the door of a house across the street. After no one answered the door, the men walked to the side door and broke the window in the door. Quinnate yelled at them and asked them what they were doing. They told him that what he heard was the sound of a Coke bottle breaking. Quinnate stated that he watched them break the window. At this point, appellant and Secrest had approached Quinnate's house and were standing on the other side of his screen door. Appellant informed Quinnatte that what they were doing was none of his business and not to be surprised if his house were broken into.

Quinnatte called the police, and when they arrived, appellant was walking down the street. They talked to him but did not arrest him at that time. At approximately 1:00 a.m., on March 30, Quinnate was sitting on the front porch waiting for the two men to return, which they did. He watched the men go in the house across the street and he called the police again. Quinatte watched them leave the house carrying a stereo. His sister described the events to police over the telephone. The two men carried the stereo along the side of Quinnate's house. As they stood in the light of his outdoor spotlight, he recognized them as the same men he had talked to a few hours earlier.

Appellant held the stereo as Secrest climbed Quinnatte's six-foot fence. Quinnate watched them approach their apartment complex behind his house. Appellant was apprehended by police outside of the complex. At that time, Quinnatte identified appellant as the man he saw break into the house across the street.

Quinnate saw Secrest enter his apartment in the complex. Secrest's mother signed a consent form and police searched the apartment. In an upstairs closet, police found a stereo on the floor. The owner of the home which was broken into identified the stereo as his.

Appellant argues the evidence is insufficient to support his conviction. He asserts that Quinnate's testimony lacks credibility due to his bias and fear of being robbed. Also, he believes there is not sufficient evidence to establish that he was the person who burglarized the home and took the stereo because Quinnatte recited the events by saying "they" broke into the house. He contends that no evidence was shown to connect him with the man carrying the stereo and his mere presence in the area of the crime is insufficient to support his conviction.

Appellant recognizes that this Court will not reweigh the evidence nor judge the credibility of the witnesses. Baker v. State (1986), Ind., 491 N.E.2d 524. The direct evidence shows that appellant entered the home and exited it as Secrest carried the stereo. Appellant held the stereo as Secrest climbed the fence. We find the evidence is sufficient to support the court's findings and judgment.

Appellant argues that his conviction should be reversed because he was denied his right to a speedy trial.

The record reflects the following: On May 2, 1986, appellant made an oral request for a speedy trial. On May 27, 1986, appellant moved for a continuance, and the trial was reset for June 30, 1986. On June 27, 1986, the State's motion for continuance was granted, and the trial was reset for August 11, 1986. On August 11, 1986, appellant's motion for continuance was granted, and the trial was reset for August 26, 1986. Though it may be a typographical error, the next docket entry shows that on August 28, 1986 appellant made another motion for continuance, and the trial date was reset for September 23, 1986. Finally, on September 23, 1986, appellant's case went to trial.

Appellant denies having any knowledge of his trial counsel's requests for continuances. The record reflects that the State's motion for continuance reset the trial date for August 11, 1986 without an objection by appellant. The record also reflects that when the continuances were granted on August 28, 1986 appellant appeared in person and by counsel. Appellant's allegation that he was unaware of the continuances is not supported by the record. He made no objection to any of the reset trial dates.

It was incumbent upon appellant to object at the earliest opportunity when his trial date was scheduled beyond the limits prescribed by Ind.R.Cr.P. 4(B)(1). Smith v. State (1985), Ind., 477 N.E.2d 857. Because the trial date was confirmed without an objection by appellant, he acquiesced to the later trial date. Id.

Appellant believes the trial court committed reversible error by refusing to rule on his pro se motion to dismiss. He makes this argument but fails to cite any authority to support his contention. Therefore, this issue is deemed waived pursuant to Ind.R.App.P. 8.3(A)(7). Smith v. State (1984), Ind., 465 N.E.2d 1105.

Appellant argues that reversible error was committed when the trial court denied his motion for lineup. In his brief, appellant cites cases from various jurisdictions which stand for the proposition that fairness requires the granting of a defendant's request for a lineup.

No authority exists in Indiana for the granting of a pretrial lineup upon a defendant's request. Discovery in criminal cases is largely a matter within the sound discretion of the trial court, and without a showing of clear error and prejudice to the defendant, its ruling will remain undisturbed. Clark v. State (1986), Ind., 498 N.E.2d 918.

In appellant's case, Quinnate was able to observe appellant for several minutes and talked to him as they stood a foot apart. Quinnate immediately identified appellant to police as the man who broke into the victim's home. We find no abuse of the trial court's discretion in denying appellant's requested lineup.

Appellant claims that his trial counsel was ineffective and his conviction should be reversed. The basis for his assertion is a document filed with the court which was handwritten and reads as follows:

"Plea of Guilty

After consultation with my attorney, and being duly advised, I, hereby willingly and of my own free will, plead guilty to Count I of the information, provided the State Recommends a 15 yr[.] sentence on Count I, and dismisses Count II, also providing that the State will not file Habitual Criminal Charges."

The plea was signed by appellant and his trial attorney. He asserts that his trial counsel "had him sign" this document and transformed it into a handwritten plea of guilty then filed it without his knowledge or consent.

Appellant argues that because...

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11 cases
  • Wright v. State
    • United States
    • Indiana Supreme Court
    • June 24, 1992
    ...a defendant must object at the earliest opportunity when his trial is set beyond the time limitations of Crim.Rule 4. Fry v. State (1988), Ind., 521 N.E.2d 1302. If an objection is not timely made, the defendant is deemed to have acquiesced to the later trial date. Decker v. State (1988), I......
  • Bell v. State
    • United States
    • Indiana Supreme Court
    • October 14, 1993
    ...must object at the earliest opportunity when his trial date is scheduled beyond the limits prescribed by Crim.R. 4. Fry v. State (1988), Ind., 521 N.E.2d 1302. Moreover, a defendant must not prematurely file a motion for discharge pursuant to Crim.R. 4. Bell v. State (1993), Ind., 610 N.E.2......
  • Dolliver v. State
    • United States
    • Indiana Supreme Court
    • September 9, 1992
    ...aggravating and mitigating circumstances and articulate the aggravating circumstances which support the increased sentence. Fry v. State (1988), Ind., 521 N.E.2d 1302. In the case at bar, the trial court listed several aggravating circumstances including appellant's prior criminal history w......
  • Elisea v. State
    • United States
    • Indiana Appellate Court
    • October 22, 2002
    ...bias or prejudice against him on the part of the trial court. See Timberlake v. State, 753 N.E.2d 591, 610 (Ind.2001); Fry v. State, 521 N.E.2d 1302, 1305 (Ind.1988) (the law presumes a judge is unbiased and unprejudiced in matters presented to the court). There is no indication from the re......
  • Request a trial to view additional results

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