Gill v. State
| Decision Date | 07 November 1977 |
| Docket Number | No. 1176,1176 |
| Parties | Frank Steven GILL, Appellant, v. STATE of Indiana, Appellee. S 420. |
| Court | Indiana Supreme Court |
Bruce S. Cowen, Deputy Public Defender, Fort Wayne, for appellant.
Theo L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of armed robbery, Ind.Code § 35-12-1-1 (Burns 1975) repealed October 1, 1977, after a jury trial and sentenced to a determinate term of twenty years imprisonment. His appeal raises three issues: (1) Whether appellant was entitled to be discharged under Ind.R.Cr.P. 4(B) because he was not tried within seventy days of his request for an early trial; (2) Whether admission of photographs of the robbery scene into evidence was improper because they did not accurately depict the scene; and (3) Whether testimony of a police officer that the robbery victim told the officer that he recognized appellant's voice was erroneous as hearsay and as the response to a leading question.
On September 15, 1975, the River Tavern in Fort Wayne was robbed by two men, one armed with a shotgun. Robert Brown, victim of the robbery, recognized the man with the shotgun, despite a stocking over his head, as appellant, who had been in the tavern many times and with whom Brown had played pool. Appellant threatened to shoot Brown, and left with $488.00 from the tavern's cash drawer. Appellant was arrested two days later hiding in a cabinet in his ex-wife's house trailer. While in jail he admitted his guilt to another inmate.
Appellant was arrested on this charge on September 17, 1975, and charged by information on September 24, in the Allen Circuit Court. After delay attributable to appellant, he waived formal arraignment and entered his plea of not guilty on January 26, 1976, and requested a jury trial. On January 29, 1976, appellant filed a motion for an early trial within seventy days pursuant to Ind.R.Cr.P. 4(B). Judge Thieme, a regular judge of the Allen Superior Court, having jurisdiction over this case as special judge held a hearing February 2 to determine whether appellant's trial date could be advanced from June 1, 1976, for which it had been set at appellant's arraignment, to an earlier date. The calendar clerk informed the court that no earlier dates were open, but that civil cases were pending for trial could be continued. However, even if this were done "we are not sure of a courtroom either because with all the judges, there wouldn't be a guarantee of a courtroom." The court promised to set appellant's trial first in any opening which might develop provided that a courtroom and jury were available. Otherwise the setting of June 1 was retained.
On April 30, 1976, appellant moved the court to discharge appellant under Ind.R.Cr.P. 4(B) because he had not been tried within seventy days of his early trial request. Such rule provides:
The court denied the motion after a hearing at which the court took notice from its records that no scheduled cases had been continued in sufficient time to subpoena witnesses for appellant's trial and that both civil and criminal cases had been tried. Appellant was tried on the first and second of June, 1976.
The trial court relied upon two separate grounds in denying the motion to discharge. The record clearly shows that appellant was not brought to trial within the seventy days from the date of his motion for an early trial as required by the rule and shows that none of the delay from the filing of that motion to the filing of the motion for discharge more than seventy days thereafter was caused by appellant. However, during this entire period, appellant was confined in the Indiana State Reformatory serving an unrelated sentence for burglary as well as awaiting trial on this armed robbery charge. The trial court concluded that the fact that appellant was serving this sentence precluded his invocation of Criminal Rule 4(B), because he had not been "held in jail" on the pending armed robbery charge since filing his early trial motion as required by the rule. This conclusion trenches upon this Court's decisions in State ex rel. Johnson v. Marion Criminal Court (1973), 261 Ind. 244, 301 N.E.2d 518, and State ex rel. Dull v. Delaware Circuit Court (1973), 261 Ind. 248, 301 N.E.2d 519. In those cases the principle was established that a criminal defendant in this State could invoke the protection of Criminal Rule 4 against a pending charge, if after arraignment on such charge he is either incarcerated or kept under recognizance. The fact that incarceration during such post-arraignment period may also be required by an order in another case does not render Criminal Rule 4 inapplicable. Here appellant was arraigned three days before the motion for early trial was filed and therefore the trial court's denial of the motion for discharge cannot be supported upon the basis of the fact that appellant was serving an old sentence for burglary at the same time he was awaiting trial on this charge.
The trial court also concluded that the delay in trial beyond the seventy day period commenced by the early trial motion was justified by congestion of the court calendar. Appellant contends that the trial court could not properly consider such congestion because the prosecutor filed no motion presenting that matter to the trial court as required by the rule. The absence of the motion has no such preclusive effect. The decision in Harris v. State (1971), 256 Ind. 464, 269 N.E.2d 537 makes it clear that the trial judge may note trial docket congestion on his own motion and act directly upon it even though the prosecutor does not present the required motion. Tyner v. State (1975), Ind.App., 333 N.E.2d 857.
At the time the early trial motion was made, the trial calendar was full and could accommodate no further settings. Appellant concedes this, but contends that such calendar did not result in "congestion" within the meaning of that term in the rule, because it was made up of a mixture of both civil and criminal settings. Appellant's point is that civil settings must give way to criminal settings required by our speedy trial rule.
Criminal Rule 4 exists in order to implement the basic right to speedy trial of those accused of crime and who are therefore in confinement or restrained on recognizance. Liese v. State (1953), 233 Ind. 250, 118 N.E.2d 731. Criminal justice...
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