Grimes v. State, No. 782S277

Docket NºNo. 782S277
Citation454 N.E.2d 388
Case DateOctober 04, 1983
CourtSupreme Court of Indiana

Page 388

454 N.E.2d 388
Gerald Franklin GRIMES, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 782S277.
Supreme Court of Indiana.
Oct. 4, 1983.

Page 389

Kenneth R. Watson, Williamsport, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, following a jury trial, of Escape, a class D felony, Ind.Code Sec. 35-44-3-5 (Burns 1979), Theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979), found to be an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983), and sentenced to a total of thirty-four (34) years imprisonment.

In this direct appeal the Defendant raises three (3) issues:

1. Whether the trial court erred in denying Defendant's pre-trial motion for separation of offenses;

2. Whether the trial court erred in allowing a police officer to testify regarding an extrajudicial statement made by the Defendant;

3. Whether sufficient evidence was presented to overcome Defendant's motion for a directed verdict and to sustain the conviction.

The record disclosed that the Defendant was incarcerated in the Warren County Jail on October 8, 1979. The Sheriff, Loran Wilkie, whose apartment was above the jail, was awakened by his wife who had heard noises below, and he went downstairs to make a bed check. He called to the Defendant, who responded, "I am in bed, Pappy." Wilkie opened the door, and the Defendant "parted me." The Sheriff found a hole in the wall of the jail and determined that the Defendant had pulled back a window frame and removed brick from underneath the window. A bucket, a bed brace, and a screw driver were found lying with the bricks under the window. The Defendant was the only person missing, and the Sheriff issued a bulletin regarding his escape.

At approximately 7:00 a.m. on the same day, the Sheriff received a report of the theft of a beige and brown Chevrolet pick-up truck. The truck, absent some tools which had been in the back, was later recovered in Cayuga, Indiana.

Around noon on October 8, 1979, a witness who was employed at Clark Chevrolet in Cayuga saw a "buckskin and cream" Chevrolet pick-up truck and a man entering the area where used "trade-ins" were kept. Later, it was learned that a silver and black Maverick automobile had been taken from that area.

Defendant was seen in a silver and black Maverick around 7:00 p.m. on October 8. He was chased by a number of police officers and was apprehended a short time later sitting in a black and silver Maverick in which were found miscellaneous tools, identified as those missing from the Chevrolet truck.

* * *

* * *

ISSUE I

Defendant contends that the trial court should have granted his pre-trial motion for

Page 390

a separation of offenses for trial. In one Information, Defendant was charged with Escape and with being an Habitual Offender. In a separate Information, he was charged with Theft. On its own motion, the trial court joined the offenses for one trial.

Ind.Code Sec. 35-3.1-1-10(b) (Burns 1979) provides that when a defendant has been charged with two or more offenses in two or more informations which could have been joined in the same information under Ind.Code Sec. 35-3.1-1-9(a)(2), the court, on its own motion, may join the informations for trial, unless to do so would not be in the interest of justice. Ind.Code Sec. 35-3.1-1-9(a)(2) provides that two or more offenses may be joined in the same information, with each offense stated in a separate count, when the offenses "are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." Ind.Code Sec. 35-3.1-1-11(a) gives a defendant an absolute right to severance of offenses, only if they are joined solely on the ground that they are of the same or similar character. In all other cases severance is granted "whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense."

Whether charges are severed for trial generally lies within the trial court's sound discretion, and clear error must be demonstrated for this Court to interfere. Duncan v. State, (1980) Ind., 409 N.E.2d 597, 599. In making its decision, the court is to take into account "the number of offenses charged, the complexity of the evidence offered, and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." Ind.Code Sec. 35-3.1-1-11(a); Jameison v....

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16 practice notes
  • State v. Roberts, No. 86-779
    • United States
    • United States State Supreme Court of Ohio
    • September 2, 1987
    ...so stale as to dilute their effectiveness. Cf. United States v. Paulton, 540 F.2d 886, 890-91 ( [8th Cir.] (1976); Grimes v. State, 454 N.E.2d 388 (Ind.1983); State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (1982) * * *; State v. McZorn, 288 N.C. 417, 433-34, 219 S.E.2d 201 (1975), death senten......
  • State v. Burge
    • United States
    • Supreme Court of Connecticut
    • February 12, 1985
    ...428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976); United States v. Paulton, 540 F.2d 886, 890-91 (8th Cir.1976); Grimes v. State, 454 N.E.2d 388 (Ind.1983); State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (1982), cert. denied, Gilbert v. New Mexico, --- U.S. ----, [195 Conn. 249] 104 S.Ct. 1......
  • People v. Thiret, No. 84SA107
    • United States
    • Colorado Supreme Court of Colorado
    • July 16, 1984
    ...to him. See Brown v. Tard, 552 F.Supp. 1341 (D.N.J.1982); People v. Quirk, 129 Cal.App.3d 618, 181 Cal.Rptr. 301 (1982); Grimes v. State, 454 N.E.2d 388 (Ind.1983); Commonwealth v. Silva, 388 Mass. 495, 447 N.E.2d 646 (1983). The critical considerations in a case of delayed custodial interr......
  • Abner v. State, No. 383
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 1985
    ...must be demonstrated for this Court to interfere. Eubank v. State (1983), Ind., 456 N.E.2d 1012, 1017; Grimes v. State (1983), Ind., 454 N.E.2d 388, 390. In making its decision, the court is to take into account "the number of offenses charged, the complexity of the evidence offered, and wh......
  • Request a trial to view additional results
16 cases
  • State v. Roberts, No. 86-779
    • United States
    • United States State Supreme Court of Ohio
    • September 2, 1987
    ...so stale as to dilute their effectiveness. Cf. United States v. Paulton, 540 F.2d 886, 890-91 ( [8th Cir.] (1976); Grimes v. State, 454 N.E.2d 388 (Ind.1983); State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (1982) * * *; State v. McZorn, 288 N.C. 417, 433-34, 219 S.E.2d 201 (1975), death senten......
  • State v. Burge
    • United States
    • Supreme Court of Connecticut
    • February 12, 1985
    ...428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976); United States v. Paulton, 540 F.2d 886, 890-91 (8th Cir.1976); Grimes v. State, 454 N.E.2d 388 (Ind.1983); State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (1982), cert. denied, Gilbert v. New Mexico, --- U.S. ----, [195 Conn. 249] 104 S.Ct. 1......
  • People v. Thiret, No. 84SA107
    • United States
    • Colorado Supreme Court of Colorado
    • July 16, 1984
    ...to him. See Brown v. Tard, 552 F.Supp. 1341 (D.N.J.1982); People v. Quirk, 129 Cal.App.3d 618, 181 Cal.Rptr. 301 (1982); Grimes v. State, 454 N.E.2d 388 (Ind.1983); Commonwealth v. Silva, 388 Mass. 495, 447 N.E.2d 646 (1983). The critical considerations in a case of delayed custodial interr......
  • Abner v. State, No. 383
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 1985
    ...must be demonstrated for this Court to interfere. Eubank v. State (1983), Ind., 456 N.E.2d 1012, 1017; Grimes v. State (1983), Ind., 454 N.E.2d 388, 390. In making its decision, the court is to take into account "the number of offenses charged, the complexity of the evidence offered, and wh......
  • Request a trial to view additional results

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