Gillie v. State

• Decision Date: 09 July 1984
• Docket Number: No. 1082,1082
• Citation: 465 N.E.2d 1380
• Parties: Ollie Eugene GILLIE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 407.
• Court: Indiana Supreme Court

Page 1380

465 N.E.2d 1380

Ollie Eugene GILLIE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1082 S 407.

Supreme Court of Indiana.

July 9, 1984.

Howard B. Lytton, Jr., Steven E. Ripstra, Lytton & Ripstra, Jasper, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Defendant (Appellant) was convicted of Theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979), Robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979), and Criminal Confinement, a class B felony, Ind.Code Sec. 35-42-3-3 (Burns 1979), and was found to be an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983). He was sentenced to two (2) years imprisonment upon the theft charge, fifteen (15) years imprisonment upon the robbery charge, and fifteen (15) years upon the criminal confinement charge, said sentences to be enhanced by five (5) years upon the habitual offender finding, and all sentences to be served consecutively. His direct appeal presents ten (10) issues for review, one of which compels us to reverse the convictions for robbery and criminal confinement. With respect to the theft conviction and the enhancement of its sentence upon the habitual offender finding, we affirm.

The record disclosed that on August 14, 1980, the Defendant committed a robbery at the Cambelltown Branch of the First National Bank of Winslow, Indiana. Gun in hand, he demanded that one employee, Kathryn Harker, lock the door of the bank and ordered both Harker and a second employee, JoAnn Radcliff, to enter the vault. Radcliff was ordered to put money into a sack. He then told the two women to remain in the vault and to lie on the floor. In the course of the robbery investigation, the police discovered a white Ford Pinto automobile, which was registered in Defendant's name and which had been reported stolen from an automobile dealership in Fort Wayne, Indiana. Subsequently, Defendant was arrested in Texas, returned to Indiana, and charged with theft, robbery, and criminal confinement.

On January 15, 1981, the State filed informations charging Defendant with robbery and criminal confinement. Both informations purported to charge class B felonies; however, they only charged class C felonies. On February 11, 1981, after Defendant had filed a motion to dismiss the informations, the State moved to amend its informations by adding the allegation that, in each case, Defendant was armed with a deadly weapon when he committed the offenses. On February 18, 1981, the State filed its "Notice of Filing Amended Informations." On March 3, 1981, Defendant objected to the amendments, and a hearing was held on the motion to amend. The trial court took the motion under advisement and subsequently allowed the amendments on March 9, 1981. On March 3, 1981, the Defendant waived formal arraignment and entered a plea of not guilty to all three counts. Defendant argues that the trial court erred in granting the State's motion to amend in violation of Ind.Code Sec. 35-3.1-1-5. We agree.

The procedural problem here presented is essentially identical to that presented in Trotter v. State, (1981) Ind., 429 N.E.2d 637 and is governed by the same subsection of the statute (since repealed) that controlled there. In Trotter, we wrote:

"The defendant charges that in permitting the aforesaid amendment, the trial court violated subsection (e) of Ind.Code Sec. 35-3.1-1-5 (Burns 1979), [footnote omitted] which is as follows:

" '(e) Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the offense charged; nor may an indictment or information be amended after arraignment for the purpose of curing a failure to charge or state an offense or legal insufficiency of the factual allegations.'

(Repealed September 1, 1982.)

"Theory of the case is defined as 'Facts on which the right of action is claimed to exist'. (Black's Law Dictionary, Third Edition.) There is a substantial difference in the facts that constitute the two offenses. Hence, we believe that it cannot be said that the amended information did not change the theory of the prosecution.

"The code section above cited is a substantial departure from the former law in several respects and restricts the prosecutors and trial judges in several particulars not previously encountered.

"The purpose of an indictment or information is first to inform the court of the facts alleged, so that it may decide whether or not they are sufficient in law to support a conviction, and second, to furnish the accused with such a description of the charge against him as will enable him to make his defense and avail of his conviction or acquittal for protection against further prosecution for the same offense. State v. Allen, (1895) 12 Ind.App. 528, 40 N.E. 705.

"In view of the above stated purpose, we are at a loss to understand why the State should not be entitled to amend charges, even as to theory and identity, as we understand such terms, when it can be done without prejudicing the substantial rights of the accused. Nor do we see how the accomplishment of a change in charges by amendment, prior to arraignment, can be objectionable when the dismissal and refiling of charges would not be proscribed by the statute of limitations or speedy trial rules. Yet subsection (e) leaves no discretion in the trial judge in such matters.

"We are, therefore, compelled to hold that the trial court erred in permitting the amendment and that the defendant was convicted of a crime for which he had not been charged."

Id. at 640-641.

Consequently, Defendant's convictions for robbery and criminal confinement are reversed.

In order to support our affirmance of the theft conviction and the enhancement of its sentence upon the habitual offender finding and to guide the trial court upon retrial of the robbery and criminal confinement charges, we address the following issues raised by the Defendant:

(1) Whether the trial court erred in denying Defendant's motions for a change of venue based upon pretrial publicity;

(2) Whether the trial court erred in denying Defendant's Motion to Suppress predicated upon his claim of a tainted lineup identification;

(3) Whether the trial court erred in denying Defendant's Motion to Suppress predicated upon his claim that hair and handwriting samples should not have been taken inasmuch as he was without the assistance of counsel;

(4) Whether the trial court erred in scheduling Defendant's trial beyond the seventy (70) day limit imposed by Indiana Rule of Criminal Procedure 4(B);

(5) Whether the trial court erred in not dismissing the habitual offender charge because of improper notice of the hearing to Defendant;

(6) Whether the trial court erred in allowing Defendant's trial testimony to be used in the habitual offender portion of the trial;

(7) Whether the trial court erred in refusing to give Defendant's tendered instruction number 7 concerning the "mere opportunity" to commit the crimes charged;

(8) Whether the trial court erred in denying Defendant's Motion for a Directed Verdict.

ISSUE I

The Defendant filed two motions for a change of venue from the county, one shortly after the charges were filed and one a week before the commencement of trial. Full evidentiary hearings were held on each of the motions, which were subsequently denied. In addition, Defendant renewed the motion at the close of voir dire examination of the jury. Again, the motion was denied.

In support of the motions, the Defendant argued that pretrial publicity prevented his receiving a fair trial in Pike County. At the first hearing Defendant introduced newspaper accounts which contained the alleged facts of the robbery and the fact that Defendant was a suspect. His photograph appeared in a newspaper, and one article indicated that he had a police record. He also introduced several affidavits of persons living in Pike County which stated that, in their opinion, Defendant could not receive a fair trial there. At the second hearing, Defendant introduced a newspaper article which had appeared in the May 28, 1981 Petersburg Press Dispatch, a weekly newspaper, and which had erroneously stated that Defendant had pled guilty to robbery and theft. One week later a second article appeared which retracted the earlier story. It went on to report that Defendant had refused to sign a plea-bargain agreement.

During voir dire examination of prospective jurors, most of those questioned stated that they regularly read the Press Dispatch. Some admitted having heard or read that Defendant was a suspect or connected with the bank robbery. All jurors who were selected to try the case, however, stated that they did not remember the substance of the accounts, merely that a robbery had occurred at the bank and a suspect had been apprehended, and that they would not be influenced by anything which they had read or heard.

The ruling upon a motion for change of venue is within the discretion of the trial court, and that ruling will not be disturbed, absent a clear showing of abuse. Dorton v. State, (1981) Ind., 419 N.E.2d 1289, 1294; Haybron v. State, (1979) 272 Ind. 190, 191, 396 N.E.2d 891, 892; Mendez v. State, (1977) 267 Ind. 67, 70, 367 N.E.2d 1081, 1083. The Defendant bears the burden of showing that community bias or prejudice exists which would prevent his obtaining a fair trial in that county. Underhill v. State, (1981) Ind., 428 N.E.2d 759, 763; Willard v. State, (1980) 272 Ind. 589, 595, 400 N.E.2d 151, 156; Haybron v. State, 272 Ind. at 191, 396 N.E.2d at 892. It is the trial court's role to weigh the evidence of potential community bias and to assess the credibility of the jurors during voir dire examination in determining whether a defendant...