Gee v. State
| Decision Date | 12 August 1988 |
| Docket Number | No. 49S00-8708-CR-794,49S00-8708-CR-794 |
| Citation | 526 N.E.2d 1152 |
| Parties | Lewis R. GEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Lewis R. Gee waived trial by jury and trial to the court resulted in his conviction for Burglary, for which he received a term of twenty (20) years, and Theft, for which he received a term of two (2) years, said terms to be served concurrently. Further, the trial judge found he was not an habitual criminal.
Two issues are presented for our review in this direct appeal:
1. trial court error in overruling Gee's Motion to Dismiss pursuant to Indiana R.Crim.P. 4(B)(1); and
2. sufficiency of the evidence.
Evidence shows the victims, Victor and Suzanne Danielson, returned to their home at 11:00 a.m., and found a red pickup truck in their drive and Gee, with another subject, inside their home. Some of the victims' property was in the bed of the truck. Danielson placed his car behind the truck so it could not leave the scene. The police arrived and arrested Gee and his accomplice.
Gee claims the trial court erred in allowing him to be tried ninety-three (93) days after the filing of his Motion for Speedy Trial. Facts determinative of this issue are complicated by the fact that when Gee was placed on bond for the instant cause, he was transferred to the State of Alaska on an outstanding warrant. Further Gee changed lawyers several times and filed motions pro se additional to pleadings filed by his attorneys.
After posting bond on August 5, 1985, in the instant case, Gee was taken to Alaska on the outstanding fugitive warrant. A warrant in this cause was issued after he failed to appear at a pretrial conference held on January 8, 1986. On May 30, 1986, while he was being held in Alaska for trial there, Gee filed a Motion for Discharge Pursuant to Criminal Rule 4(A), which the trial court denied in July, 1986. It appears either Gee or his attorneys filed motions in regard to speedy trial and Gee does not deny asking for continuances, changing lawyers, and his inability to return because of proceedings in Alaska, caused him to lose that remedy.
After being returned to Indiana, Gee appeared in court on December 3, 1986, at which time trial by jury was set for March 19, 1987, and the parties agreed to this trial date. On December 16, 1986, Gee filed his pro se motion for a speedy trial pursuant to Ind.R.Crim.P. 4(B), where he directed the court's attention to the fact the trial date of March 19, 1987 exceeded the seventy day period, and he objected to that setting. On December 17, 1986, the trial court granted his motion and reset the trial for February 19, 1987. At a pretrial conference held on February 11, 1987, the trial court found that due to a congested calendar it would not be possible to try this cause on February 19. The court continued it to March 19, 1987, the original setting. Gee orally objected to this. The record contains only this objection with regard to the continuance.
On March 11, 1987, final pretrial was had and Gee, in writing, waived trial by jury and trial to the court was directed for the March 19 setting. Gee did not object at that time to the setting. Prior to trial on March 19, 1987, Gee again moved for discharge but based this objection on his previous motion filed pursuant to Ind.R.Crim.P. 4(A). Gee concedes he is not entitled to discharge on his 4(A) motion.
However, Gee contends that pursuant to his 4(B)(1) motion he was entitled to be tried on or before February 24, 1987 and his actual trial date exceeded that limitation by twenty-three (23) days. He concedes a trial court may, on its own motion pursuant to Ind.R.Crim.P. 4(B)(1), continue a trial date due to a congested court calendar. This court has so held in Dudley v. State (1985), Ind., 480 N.E.2d 881, 890, Jordan v. State (1982), Ind., 435 N.E.2d 257, 258, and Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, 1265, cert. den. 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. He claims, however, the court's docket entry must clearly state a trial was continued because another criminal jury trial caused the congestion, and that it cannot be assumed the court acted according to the mandates of Ind.R.Crim.P. 4. Gee refers only to the...
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...determination whether the defendant acted knowingly or intentionally is a matter to be determined by the trier of fact. Gee v. State (1988) Ind., 526 N.E.2d 1152, 1154; McCaffrey v. State (1988) 2d Dist. Ind.App., 523 N.E.2d 435, 436. In determining the existence of the requisite degree of ......
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