Halligan v. State

• Decision Date: 23 May 1978
• Docket Number: No. 3-777A161,3-777A161
• Citation: 375 N.E.2d 1151,176 Ind.App. 463
• Parties: Patrick J. HALLIGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1151

375 N.E.2d 1151

176 Ind.App. 463

Patrick J. HALLIGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3-777A161.

Court of Appeals of Indiana,Third District.

May 23, 1978.

James R. Beaver, Halleck & Beaver, Rensselaer, for appellant.

Theo. L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Patrick J. Halligan was convicted of reckless driving and assault. He appeals, designating the following errors:

(1) Procedural irregularities constituted a denial of his right to a fair trial.

(2) The judgments of conviction are contrary to law.

(3) The judgments of conviction are unsupported by sufficient evidence.

(4) Hearsay evidence was admitted over the timely objection of Halligan.

(5) Halligan was denied a fair trial by misconduct of the Deputy Prosecutor and the Jasper County Probation Department.

After reviewing the above issues, we conclude that statutory assault is not necessarily a lesser included offense of statutory assault and battery, and we reverse the judgment of the trial court finding Halligan guilty of assault. We affirm the reckless driving conviction. The judgment of the trial court is therefore reversed in part and affirmed in part.

I. Facts

Patrick Halligan stopped his car behind another car at a stop light. The other vehicle, driven by Ferdinand Seng, backed into Halligan's car before proceeding forward when the light turned green. Halligan was miffed; he followed the Seng car, intending to elicit an apology. Seng, an eighteen-year-old college freshman, drove to an area behind a St. Joseph College dormitory. Halligan cut across a grassy area and positioned his car so that his window was adjacent to the driver's window on Seng's car. Halligan began opening his door and shouted to Seng, "I ought to slap the shit out of you, boy." Seng's passenger, Cindi Wood, said, "He's trouble," and Seng "floored it in reverse and then floored it to get out of the parking lot."

A high speed chase followed. Seng testified that Halligan drove behind him at speeds of 85 to 95 miles per hour and rammed the rear end of Seng's vehicle five times during the chase. The parties stipulated that there was no damage to the rear of Seng's car, however, and the trial court made a factual finding that there was no collision of the vehicles. Seng did lose control of his car while on the interstate, crossed over the median strip, spun around, and ended up in a ditch. No one was hurt. The Seng vehicle (owned by Wood) was repaired at a cost of $127.00. Halligan was charged with reckless driving and two counts of assault and battery. He was found not guilty on one count of assault and battery, and guilty on the reckless driving charge. The trial court then found Halligan guilty of assault which the judge believed was a lesser included offense of assault and battery.

II. Procedural Irregularities

Halligan directs the attention of this Court to several procedural irregularities which, he asserts, constituted a denial of his right to a fair trial.

A. Arraignment.

Minute sheet entries for October 25, 1976, show that Halligan "waives formal arraignment and enters his plea of not guilty to the charges of reckless driving and assault and battery, counts I and II. Court being duly advised sets these matters for trial before the bench. . . ." The actual transcript of the arraignment reveals the following:

"THE COURT: Are any of the following individuals present? Patrick J. Halligan?

COURT REPORTER: He came in and pled not guilty to Betty out at the desk.

THE COURT: You can't do that. He did that tonight already?

COURT REPORTER: I just got a note on my desk saying he came and pled not guilty to Betty. Wasn't gonna come tonight.

THE COURT: Mr. Halligan came in today and pled not guilty. He didn't want a hearing. He just entered a plea of not guilty. Did you give him a trial date?

COURT REPORTER: No, I didn't. I wasn't here.

THE COURT: Alright, we(')ll make a minute sheet showing that he entered his plea of (not) guilty waiving formal arraignment and set a trial date for this matter.

COURT REPORTER: Wednesday or Friday afternoon?

THE COURT: On a Wednesday or Friday afternoon. That's correct."

Halligan claims that he had not intended to waive formal arraignment, and that the docket entry which reads "comes now defendant" is erroneous in that it implies that the waiver was in open court. Halligan offers several affidavits which tend to substantiate his allegation that his conversation with Betty, the court secretary, was not meant to constitute a waiver.

IC 1971, 35-4.1-1-1 (Burns Code Ed.) provides that "(b)efore any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto." However, subsection (d) of the statute expressly states that "(i)f the defendant stand mute or refuses to plead to the indictment or information . . . a plea of not guilty shall be entered by the court." Because Halligan did not appear at the expected time and because he offers no reasonable explanation for his failure to so appear when called in court, ¹ we do not believe that the trial judge committed error when he entered a plea of not guilty for Halligan. IC 1971, 35-4.1-1-1(d) (Burns Code Ed.) specifically addresses Halligan's situation:

"A judgment of conviction shall not be invalidated because of the failure of the record to show that the indictment or information was read to the defendant at arraignment or that the defendant entered a plea, unless the record shows that the defendant objected to entering upon the trial for lack of such arraignment or plea."

Halligan argues that his attorney, who was hired only the day before trial was misled by the court docket and minute entries, had no access to the transcript of the arraignment proceedings, and thus failed to object. While we sincerely believe that the misunderstanding is regrettable, we have not been shown facts which demonstrate that the error deprived him of a fair trial. ²

B. Bifurcated Procedure.

Halligan's attorney requested a continuance on the day of trial. He stated to the court that Halligan had only retained his services the day before and that, although he had worked on the case all night, he did not feel that he was prepared to present a competent defense for Halligan. Noting that the trial date, December 15, 1976, was set in October, 1976, the trial court denied the continuance. The court did offer the defense attorney the option of presenting the defendant's case at a later date. After the State presented its case, Halligan accepted the opportunity for a bifurcated proceeding; and Halligan presented his defense on January 19, 1977.

Denial of a motion for a continuance is reviewed for abuse of discretion. There must be a showing of prejudice before the trial court's decision is overturned. Dilley v. Scott (1975), Ind.App., 338 N.E.2d 296. We have been shown no such abuse or prejudice. The bifurcation of Halligan's trial was irregular. However, Halligan accepted it at the time; and, it was offered solely for his benefit. Halligan's attorney conducted detailed cross- examination of the State's witnesses, and Halligan was free to call witnesses during his portion of the trial. We perceive no error in the denial of the continuance.

III. Contrary to Law

Halligan maintains that the convictions on both charges were contrary to law. He focuses upon certain findings of the trial court, and he posits that the findings demonstrate that the court erroneously looked into the minds of the victims, rather than to the actions of Halligan, to substantiate the convictions.

A. Reckless Driving.

IC 1971, 9-4-1-54(c), Ind.Ann.Stat. § 47-2001 (Burns Code Ed., Supp.1977) describes those acts which constitute a legal basis for conviction for reckless driving. When the trial court made its findings regarding the reckless driving charge, several possible bases for the conviction were listed: speeding, driving over the grassy strip, driving with reckless disregard for the safety, property or rights of others. The trial judge then entered upon the record a fairly detailed discussion of Halligan's part in the high speed chase. Using the felony murder rule as an analogy, the trial court held that Halligan had set a course of events into action by his reckless driving.

"I think what happened to the Seng vehicle, and the danger placed on the others, combined with the speed of both vehicles, the entire incident taken as a whole, that it constitutes reckless driving. Although Mr. Halligan's direct actions, and I want the record to show that clearly, his direct actions may not have placed others in danger with the exception of his speed, which is also a violation of the reckless driving charge. I don't want the record to indicate that Mr. Halligan drove his vehicle to where he ran trucks off the road or other vehicles. The only thing which he did personally was his own speed which is admitted to on the record. But I am going to find him guilty of reckless driving in this matter. . . ."

Clearly the court was following the law. The fact that the court considered the incident as a whole does not place undue emphasis upon Seng's state of mind. Moreover, the judge referred, in several separate statements, to Halligan's speed. The conviction of reckless driving is not contrary to law.

B. Assault.

Halligan was convicted of assault, "as lesser included as charged in the information." We must agree with Halligan that assault is not a necessarily included offense of the charged crime of assault and battery.

IC 1971, 35-3.1-1-2(a)(4) (Burns Code Ed.) provides that the information shall be in writing and allege the commission of a crime by setting forth the nature and elements of the crimes charged in plain and concise language without unnecessary repetition. The Indiana Constitution and the United States Constitution...