Grimes v. State
| Decision Date | 04 October 1983 |
| Docket Number | No. 782S277,782S277 |
| Citation | 454 N.E.2d 388 |
| Parties | Gerald Franklin GRIMES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Kenneth R. Watson, Williamsport, for appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
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.
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Defendant contends that the trial court should have granted his pre-trial motion for 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."
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.
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. State, (1978) 268 Ind. 599, 601, 377 N.E.2d 404, 405.
In the case at bar, the charges were not joined for one trial solely on the ground that they were of the same or similar character. Rather, the charges arose from a single ongoing scheme and were based upon a series of acts that constituted the parts of the scheme. Defendant here escaped from the jail. In furtherance of his escape, he stole a truck and fled the area. That theft was the basis of the theft charge that was joined.
It cannot be said that the evidence in this case was complex or that a fair determination of Defendant's guilt or innocence was hindered when he was tried on both charges in the same trial.
Defendant contends that the trial court erred in allowing an extrajudicial statement made by him to be admitted into evidence. He argues that the statement was made without a proper advisement of his rights having been made, as required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Following a hearing outside the presence of the jury, at which time the trial judge ruled that the statement was admissible, Officer Phil Oliver, a trooper with the Indiana State Police, testified that he had advised the Defendant of his rights on the night he was apprehended and that although the Defendant acted disinterested in what was taking place, he responded, "I know what my rights are; I know what my rights are." One or two days later, while the Defendant was in the Sheriff's office awaiting transport to the Diagnostic Center, Oliver, in the presence of others and in the midst of casual conversation in which the Defendant was participating, asked the Defendant why he had abandoned the truck for a car. Oliver did not read the Defendant his rights again, but said, "You know what your rights are; you don't have to answer it." and told the Defendant that he was merely curious. Defendant responded that he had gotten rid of the truck because it wouldn't run properly after he had put diesel fuel in it and that he needed "wheels" to get away.
Before this statement could properly be admitted into evidence, the State was required to establish, beyond a reasonable doubt, that the Miranda warnings were given and that the Defendant voluntarily waived his rights. In determining whether this burden has been met, we look to the totality of the circumstances surrounding the making of the statement to determine whether it was freely given or induced by violence, threats, promises or other improper influence. Tawney v. State, (1982) Ind., 439 N.E.2d 582, 586; Long v. State, (1981) Ind., 422 N.E.2d 284, 285; Turner v. State, (1980) Ind., 407 N.E.2d 235, 237. However, in reviewing the trial court's ruling upon the issue, we will not weigh the evidence but will only determine whether there was substantial probative evidence to...
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