Grimes v. State, 3--375A42

• Decision Date: 01 September 1976
• Docket Number: No. 3--375A42,3--375A42
• Parties: Eugene GRIMES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 500

353 N.E.2d 500

170 Ind.App. 525

Eugene GRIMES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--375A42.

Court of Appeals of Indiana, Third District.

Sept. 1, 1976.

James E. Foster, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Eugene Grimes was charged with rape (statutory) of a thirteen-year-old girl. IC 1971, 35--13--4--3 (Burns Code Ed.). After a jury trial, he was convicted of assault and battery with intent to commit a felony. IC 1971, 35--1--54--3 (Burns Code Ed.). He was sentenced to a term of not less than one (1) nor more than ten (10) years. His belated appeal to this Court raises the following issues:

(1) Did the trial court err in allowing an amendment to the information?

(2) Did the trial court err in admitting a waiver and statement given by Grimes?

(3) Did the trial court err in not instructing the jury on the lesser includable offense of assault and battery with intent to gratify sexual desires, IC 1971, 35--1--54--4 (Burns Code Ed.)?

(4) Did the trial court err in instructing the jury that assault and battery with intent to commit a felony is a lesser included offense of the principal crime of statutory rape?

We find no reversible error, and we affirm.

I. Amendment of Information

On November 20, 1973, the State filed the original information, which charged that the offense occurred on or about November 15, 1973. On May 6, 1974, the State filed an amended information which changed the date of the offense to on or about November 14, 1974. On October 1, 1974, immediately prior to trial, the State moved to amend the amended information to correct the year from 1974 to 1973. Grimes conceded that the change of year was obviously a typographical error, but he objected to the change of day from the 15th to the 14th. He argues that the amendment was made without notice to him, that no proper motion was made to change the day, and that the amendment was detrimental to the preparation of his defense. He contends that the amendment should not have been granted and that the State should have been 'left with any difficulties the variance between the evidence and the information may result in.'

IC 1971, 35--3.1--1--5 (Burns Code Ed.), provides, in pertinent part:

'(a) An indictment or information which charges the commission of a crime shall not be dismissed but may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

'(7) The failure to state the time or place at which the crime was committed where time or place is not of the essence of the crime;

'(9) Any other defect which does not prejudice the substantial rights of the defendant.

'(b) The indictment or information may be amended in matters of substance giving notice to the defendant and with the consent of the court, at any time before arraignment. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

'(c) Upon motion of the prosecutor the court (may) at any time before, during or after the trial permit an amendment to the indictment or information in respect to any defect, imperfection or omission in form which does not prejudice the substantial rights of the defendant.

'(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any adjournment or postponement of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.' (our emphasis).

Although the statutory procedures of motion, notice, and opportunity to be heard were not followed when the State filed its amended information on May 6, 1974, we conclude that the errors were unintentional and harmless. There is no showing that the amendment prejudiced the substantial rights of the defendant. Time was not of the essence of the offense charged. Grimes did not file a notice of alibi defense prior to trial to the offense as originally charged. When Grimes became aware of the amendment prior to trial, he was given an opportunity to be heard. He did not seek a continuance, and he cannot now complain that he was not allowed adequate opportunity to prepare his defense to the amended charge.

Grimes has not shown that he was prejudiced in any way by the procedural errors or by the trial court's decision to allow the amended information to stand. Unless there is a showing of prejudice, we will not reverse a conviction on appeal.

II. Waiver of Rights and Statement

Grimes was arrested on the evening of November 14, 1973. On the morning of November 15, 1973, Grimes was questioned by Officer Curley. He made a statement at 10:15 A.M. and signed a waiver of rights form at 11:00 A.M. At trial, Grimes objected to the admission of the waiver and statement on the grounds that (1) there was no showing that Grimes knowingly and intelligently waived his rights before the statement was made, and (2) the statement was involuntary because Grimes was questioned more than twelve hours after his arrest and before he was taken before a magistrate. The trial court overruled Grimes' objections after a hearing outside the presence of the jury, and the waiver and statement were admitted into evidence.

The basis of Grimes' contention that he did not waive his rights prior to giving the statement is that, according to the times notes on each of the documents, the waiver was signed after the statement was signed. There is no requirement that a defendant sign a written waiver in order to comply with the constitutional requirement that he be advised of his rights prior to any custodial interrogation. Hewitt v. State (1973), 261 Ind. 71, 300 N.E.2d 94. The fact that the written waiver may have been signed after Grimes made the statement does not necessarily establish that Grimes was not advised of his rights, and did not knowingly and intelligently waive them, prior to making the statement. The signatures may well have been a formality which followed the entire process.

In the present case, there is ample evidence that Grimes was advised of his rights prior to his custodial interrogation, that he understood them, and that he voluntarily waived them and agreed to give a statement to the police. Officer Curley testified that, prior to questioning Grimes, he advised him of his 'right to remain silent, his right to an attorney, his right to any time that I am questioning him to request an attorney to be present and also his right that if he doesn't have funds to obtain an attorney, the Court will provide one. Then I also read him those rights off that waiver form that we have.' The rights on the waiver form are as follows:

'1. Before making this statement, I was advised that I have the right to remain silent, and that anything I might say may or will be used against me in a court of law.

'2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

'3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

'4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.

'5. That if I cannot hire an attorney, one will be provided for me.'

Officer Curley testified that Grimes read the waiver of rights form after Curley read it to him:

'Q. Do you think he understood these rights that you said you read to him?

'A. Yes, he said he did.

'Q. What did he say?

'A. He said yes, he give me a statement, he understood that he had the right to remain silent and not to give a statement or call for an attorney.'

Our review of the record reveals that Grimes was advised of his rights in clear and understandable terms prior to making a statement to Officer Curley. The fact that he may not have signed the written waiver form until after he made his statement does not invalidate his waiver or negate the clear proof that the waiver and statement were voluntarily and knowingly given.

Grimes argues that the waiver and statement should not have been admitted into evidence because he was not taken before a magistrate within six hours of his arrest, IC 1971, 35--5--5--3 (Burns Code Ed.), and because the statement was taken more than six hours after his arrest and before he was taken before a magistrate. In Indiana, delay in bringing a defendant before a judge 'is but one factor to be considered in determining the admissibility of a confession taken more than six hours after a defendant's arrest.' Apple v. State (1973), Ind.App., 304 N.E.2d 321, 325. A trial court may still find that the confession is admissible if, 'looking at all the circumstances, the confession was free and voluntary, and not induced by any violence, threats, promises, or other improper influence.' Nacoff v. State (1971), 256 Ind. 97, 101, 267 N.E.2d 165, 167. See IC 1971, 35--5--5--1, --2, --3 (Burns Code Ed.). In the present case, the testimony reveals that the length of the interrogation session was reasonable, that Grimes was advised of his rights, understood them, and voluntarily waived them, and that he did not at any time express a desire to consult with an attorney or to stop the questioning session. Officer Curley denied that Grimes was threatened in any way or that any promises were made to induce his statement. On the basis of the evidence presented, the trial court could reasonably have determined that Grimes' statement was voluntarily given, despite the...