Hart v. State

• Citation: 32 Ind. Dec. 96,285 N.E.2d 676
• Decision Date: 01 August 1972
• Docket Number: No. 272A69,272A69
• Parties: James HART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 676

285 N.E.2d 676

James HART, Appellant, v. STATE of Indiana, Appellee.

No. 272A69.

Court of Appeals of Indiana, First District.

Aug. 1, 1972.

Rehearing Denied Aug. 30, 1972.

Joseph B. Barker, Kagan & Barker, Martinsville, for appellant.

Theo. L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

LYBROOK, Judge.

Defendant-appellant (Hart) was convicted of Entering to Commit a Felony and Theft after a jury trial. He was sentenced to not less than one nor more than ten years on each charge, to be served concurrently.

Hart's Motion to Correct Errors was overruled and he appeals. Issues raised are: (1) Failure of the State to grant a Speedy Trial; (2) Verdict not supported by sufficient evidence; (3) Failure to grant defendant's Motion for Directed Verdict and the giving of two of State's instructions and (4) Failure to grant in mistrial after an allegedly prejudicial statement by a police officer while on the stand.

The evidence shows that on April 7, 1969, between 7:30 A.M. and 12:00 noon, the Russell Lightle residence in the Mooresville area was burglarized and certain property taken.

On April 10, 1969, an affidavit was filed in and a warrant issued from the Morgan Superior Court for Hart. He was not immediately located and it later developed that he was incarcerated in a Florida prison from January 1970, to April 1971. On February 16, 1970, a detainer warrant was filed with Florida authorities. Defendant contends that on or about March 16, 1970 he engaged a 'jail house lawyer' at the Florida State Prison who prepared a 'Motion for Fair and Speedy Trial' which was mailed to the Circuit Court of Morgan County with a copy to the Prosecuting Attorney of said county. There is no evidence in the record that the Motion ever reached or was ever actually filed in the Morgan Superior Court where the case was pending, nor did it even come to the attention of that court until May, 1971.

On April 16, 1971, Hart refused to waive extradition but on May 6, 1971 consented thereto and was returned to Morgan County by the Sheriff for trial.

Hart was arraigned on May 15, 1971 and upon his request a Pauper Attorney was appointed to represent him. Cause was set for trial on May 20, 1971 and on this date defendant appeared by counsel and asked for a continuance and the case was reassigned for trial, by jury, on July 15, 1971.

On June 7, 1971, defendant filed a Motion to Dismiss and for Discharge from Custody under Criminal Rule 4, Indiana Rules of Procedure, taking the position that the State made no effort to bring the defendant to trial until May of 1971, which was over one (1) year after defendant's above Motion for Speedy Trial. At a hearing on the motion, evidence was heard which adduced the following additional facts.

Hart testified that immediately after the date of the offense herein, he went to Colorado and then to California, where he was arrested. While in custody there he was advised that there was a warrant for him in Indiana. He was also wanted by the State of Florida for 'Unlawful Flight to Avoid Confinement', having received a three year sentence in 1968 for Breaking and Entering. He had approximately 14 months left to serve on this sentence when he was returned to Florida State Prison. Hart further testified that 'California and the U.S. Attorney's Office and everyone else involved dropped all charges if I would go back to Florida.' Hart indicated that the specific reason Florida wanted him again was because he had breached his status as a 'trustee'. (sic)

At the hearing on the Motion to Discharge, Richard Bray, Prosecuting Attorney, testified that he could not remember receiving a copy of defendant's Motion for Speedy Trial during the term of his office, which expired December 31, 1970. He seemed to recall something about the defendant being incarcerated in Florida and believes that at one time they started preparation of extradition proceedings but does not recall the source of his information or how far the proceedings progressed. Bray's file was turned over to his successor, James E. Harris, who first became aware of the motion in March or April of 1971, finding a copy of it in the file.

There is nothing in the record to show what happened to the original Motion for Speedy Trial addressed to the Morgan Circuit Court.

Defendant's Motion for Discharge was overruled, he was tried, found guilty and sentenced.

With the above essential facts in mind, we now proceed to the consideration of defendant's first issue, i.e., the alleged failure of the State to grant a speedy trial and the ensuing 14 month delay. Defendant relies on Criminal Rule 4, the Sixth Amendment of the Constitution of the United States and Article 1, Sec. 12 of the Indiana Constitution, as well as several recent decisions of the United States Supreme Court.

After the case at bar was fully briefed, the United States Supreme Court handed down Barker v. Wingo, --- U.S. ---, 92 S.Ct. 2182, 33 L.Ed.2d 101, (decided June 22, 1972), and in a lengthy opinion considered the speedy trial problem in some detail.

Justice Powell reviewed many of the court's prior decisions, including the recent cases relied upon by Hart. The first was United States v. Ewell (1966), 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627, wherein the defendant contended that the passage of 19 months demonstrated a violation of the Sixth Amendment guarantee of a speedy trial. The court disagreed and stressed the fact that defendant's claim of prejudice was insubstantial, speculative and premature, where it appeared that no specific evidence had been lost nor any witnesses had disappeared.

Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, involved a federal prisoner who made repeated demands by letters and motions for a speedy trial on a charge pending in the State of Texas. There was a delay of six years, during which the State made no effort to bring him to trial. The court held that Texas '. . . had a constitutional duty to make a diligent, good-faith effort . . .' to bring him before the court for trial.

Justice Powell also mentioned Dickey v. Florida (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26. Here the court unhesitatingly ruled in defendant's favor in a case where defendant attempted unsuccessfully by repeated and diligent efforts by motions in the State Court, over a period of almost eight years, to secure a prompt trial. The court stressed the fact that during the interval two witnesses had died, another was unavailable and police records of possible relevance had been lost or destroyed.

In Barker v. Wingo, supra, the Commonwealth of Kentucky delayed Barker's trial in order to try a co-defendant first and the Commonwealth sought and obtained 16 continuances over a five year period. The Sixth Circuit Court of Appeals held that Barker waived the delay caused by the first series of continuances by not objecting thereto and noted that the remaining period after he first raised his claim--approximately 20 months--was not unduly long. In a unanimous opinion the Supreme Court affirmed the case and stated they were compelled to make an attempt to set forth the criteria by which the speedy trial right is to be judged. The court noted that '. . . unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.' The court further noted that the severe remedy of dismissal was indeed a serious consequence, because it means that a defendant who may be guilty of a serious crime may go free, without having been tried. The court rejected the inflexible approach involving a fixed time period because it went further than the Constitution requires. Instead it adopted a 'balancing test', in which the conduct of both the prosecution and the defendant are weighed.

Stating that these cases are to be approached on an 'ad hoc' basis, the court identified four factors to be used in the balancing test: Length of delay, the reason for the delay, the defendant's assertion of his right and prejudice to the defendant. Justice Powell held that the most serious consideration was the effect on the ability of the defendant to prepare his defense.

Applying the above factors to the case at bar, the delay of 14 months, even if it could be charged to the State, is not per se a violation of the Constitution under the cases. In asserting his right it could also be successfully contended that Hart did not correctly put the trial court on notice when he addressed his Motion for Speedy Trial to the wrong court. As to the fourth factor, that of prejudice to the defendant, none has been shown. In his brief, Hart makes several vague general assertions that the delay allowed evidence to become lost and that for this reason defendant refused to take the stand on his own behalf. However, the record does not disclose any evidence whatsoever which was lost or affected by the delay.

We conclude that the delay herein was not unreasonable under the above authorities and that Hart's Constitution rights were not violated.

Hart further contends that Criminal Rule 4, which superseded I.C.1971, 35-1-26-2; Ind.Ann.Stat. § 9-1402 (Burns 1956), should be construed to apply literally to prisoners incarcerated in other jurisdictions as well as to those detained in jail without trial. Criminal Rule 4 provides in part as follows:

'(A) Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months . . .'

Before this rule was promulgated, earlier Indiana cases decided under Burns § 9-1402 drew the distinction between being detained in jail or being detained in prison. See, Finton v. State (1963), 244 Ind. 396, 193 N.E.2d 134, wherein the court said:

'Without deciding the merits of appellant's petition for discharge in other respects, it appears that the facts do not...