Goudy v. State, 48S00-9604-CR-296

Docket NºNo. 48S00-9604-CR-296
Citation689 N.E.2d 686
Case DateNovember 26, 1997
CourtSupreme Court of Indiana

Mark Maynard, Anderson, for Defendant-Appellant.

Jeffrey Modisett, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, for Plaintiff-Appellee.

SELBY, Justice.

Walter Goudy ("defendant") was tried before a jury and found guilty of Murder, Attempted Murder, Attempted Robbery, and Attempted Carjacking. He was sentenced to 60 years for the Murder; 50 years for Attempted Murder to be served consecutively with the 60 year Murder conviction; 50 years for the Attempted Robbery to be served concurrently with the Murder conviction; and 20 years for the Attempted Carjacking to be served concurrently with the Murder and Attempted Robbery convictions.

In this direct appeal, defendant raises the following nine issues for review: 1) Did the trial court err in denying a motion for discharge pursuant to Indiana Criminal Rule 4(C)? 2) Was there reversible error in the trial court's refusal to suppress evidence associated with the warrant of arrest? 3) Was there reversible error in the trial court's refusal to suppress identification evidence based upon an allegedly tainted police lineup procedure? 4) Did the trial court err in refusing to compel production of certain police reports for in camera review? 5) Should a mistrial have been declared because the prosecutor refused to grant immunity to two witnesses? 6) Should the law be changed with regard to certain types of jury instructions? 7) Was there fundamental error in the failure of the trial court to instruct the jury on the intent element of attempted murder? 8) Did the trial court err in entering judgment and sentence on both the Attempted Robbery and the Attempted Carjacking charges? 9) Did the trial court err in refusing to continue the sentencing hearing? We answer all these questions in the negative except issue eight. The cause is accordingly remanded for the entry of a new sentencing order consistent with this opinion.


On the night of October 2, 1993, Marvin McCloud was driving his 1987 gold colored Cadillac in Anderson, Indiana. Defendant and some companions observed McCloud's car and commented on the wheels and tires on the vehicle. Defendant and at least one of the men he was with agreed to "jack" McCloud--that is, to rob him of his car. Driving in a vehicle owned by defendant, they followed McCloud to a bar.

When McCloud left the bar, he returned to his car along with two friends. The three entered McCloud's vehicle and proceeded to drive away. McCloud was driving, Damon Nunn was sitting in the front seat, and Jill Barkley was in the back seat. As McCloud's car exited a parking lot, defendant and another man came alongside the car, one on either side, and began firing shots from handguns into the vehicle. McCloud and Damon Nunn were struck by bullets from the gunfire. The injured Nunn was able to take control of the vehicle from the unconscious McCloud and pilot the car away from the shooting scene to a hospital. McCloud died shortly after arriving at the hospital.

At trial, Damon Nunn positively identified defendant as one of the persons who shot into McCloud's vehicle. Jill Barkley, the backseat passenger, also identified defendant at trial as one of the shooters. Jackie Barkley, Jill Barkley's sister, was a witness to the shooting. She, too, testified at trial that defendant was one of the shooters. Latonia Young also was a witness who saw defendant fire shots into the McCloud vehicle. Kaidi Harvell was with defendant on the night of the shootings. Harvell testified about the activities of defendant leading up to the shooting and also identified defendant as one Defendant's defense was that he was at a party in his home in Indianapolis at the time of the murder. However, in addition to the witnesses above who saw defendant fire the shots into McCloud's car, two other witnesses placed defendant in Anderson, Indiana just before the shooting.

of the two men who fired shots into McCloud's vehicle.

I. Speedy trial.

Defendant was initially charged with Murder and Attempted Murder in February of 1994. He was arrested and jailed on these charges. On March 14, 1994, defendant filed a request for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1). That Rule provides, in part:

If any defendant be held in jail or on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion....

A trial date of May 23, 1994 was set. This was within the seventy day period anticipated by Criminal Rule 4(B)(1).

On May 16, 1994, the charges against defendant were dismissed at the request of the prosecutor after defendant submitted a list of sixteen alibi witnesses. After investigating the matter further, the prosecutor refiled the original charges on April 7, 1995, and at the same time added the Attempted Robbery and Attempted Carjacking counts. When the new charges were filed, however, defendant was absent from the jurisdiction. Defendant was ultimately arrested on April 11, 1995, while he was being released from an unrelated detention in St. Louis, Missouri.

The seventy-day speedy trial clock is stopped if charges against a defendant are dismissed, but will begin running again where it left off if the State refiles the charges. Hornaday v. State, 639 N.E.2d 303 (Ind.Ct.App.1994), trans.denied.

Although the new charges were filed on April 11, 1995, the clock did not recommence on that date because defendant was absent from the jurisdiction when the charges were again filed. Criminal Rule 4(B)(1) by its own terms applies only when "any defendant be held in jail." Thus, the speedy trial clock did not begin to run again until defendant was again held in jail in Indiana. Accord State ex rel. Turner v. Hancock Circuit Court, 270 Ind. 320, 385 N.E.2d 447, 448 (1979). Thus, to the extent that defendant is otherwise entitled to the benefit of Criminal Rule 4(B)(1), the speedy trial clock recommenced on April 21, 1995, when he appeared before the trial court following his waiving of extradition from Missouri.

Sixty-three days lapsed between the filing of his motion for a speedy trial and his discharge (from March 14, 1994 until May 16, 1994). Defendant argues that in failing to set the cause for trial by April 28, 1995 (seven days after being returned to the jurisdiction), the State failed to provide him with a trial within the seventy day period described in Criminal Rule 4(B)(1). He asserts the trial court thus erred in denying his motion for discharge filed May 1, 1995.

We find no error. At the hearing held April 21, 1995, the trial court scheduled an omnibus date of June 21, 1995. Defendant made no objection to the setting of that date, which was well outside the window of time within which defendant asserts he should have been brought to trial following his return to Indiana to face charges. A defendant who permits the court, without objection, to set a trial date outside the seventy day limit will be deemed to have acquiesced therein. Altmeyer v. State, 519 N.E.2d 138, 140 (Ind.1988). This same rule has been applied where the trial court has scheduled an omnibus hearing outside the seventy day limitation period. Fink v. State, 471 N.E.2d 1161, 1163 (Ind.Ct.App.1984). Thus, defendant waived his earlier speedy trial request by acquiescing in the setting of an omnibus date, and by necessary implication, a trial date, beyond the seventy day limit permitted by Criminal Rule 4(B)(1).

Because of our disposition of this issue, we need not and do not address whether the additional charges added by the prosecutor arose out of the same transaction or were based on substantially the same factual allegations for purposes of relating back to the

original charging information. See Gamblin v. State, 568 N.E.2d 1040 (Ind.Ct.App.1991) (speedy trial deadlines may not apply to subsequently filed separate and distinct offenses, but may apply where subsequent charges are based upon substantially the same factual allegations or transaction).

II. Allegedly invalid warrant.

Prior to trial, defendant filed a motion to suppress any evidence derived from his detention pursuant to an arrest warrant issued February 11, 1994. The warrant was limited in scope, being for the "purposes of obtaining photographs, fingerprints, and participate in a physical lineup." (R. at 384-85.) While in the custody of the police, defendant was put in a lineup for possible identification by potential witnesses. Among the witnesses who participated in that lineup who would later testify at trial were Damon Nunn, Jill Barkley, Jackie Barkley, Latonia Young, and Carla Goree.

Defendant claimed at the suppression hearing and asserts now on appeal that the warrant was invalid because of allegedly misleading testimony given by a police officer at the probable cause hearing leading to the issuance of the warrant. He asserts the identification evidence from the lineup should therefore be suppressed.

To preserve a suppression claim a defendant must make a contemporaneous objection at trial that is specific enough to alert the trial judge fully to the legal issue being raised. Moore v. State, 669 N.E.2d 733, 742 (Ind.1996). Where the defendant fails to object to the introduction of evidence, makes only a general objection, or objects only on other grounds, the defendant waives the suppression claim. Id.

The only objections during trial that might be related to the allegedly invalid warrant and the evidence derived therefrom were defendant's objection to the identification testimony of Jackie Barkley on the basis of "the previously raised issue" (R. at 1403); to the identification evidence of Jill Barkley on the basis of "issues we've previously raised" (R. at 1444); and to the...

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