Hartman v. State

• Decision Date: 15 May 1978
• Docket Number: No. 1-977A215,1-977A215
• Citation: 376 N.E.2d 100,176 Ind.App. 375
• Parties: Phillip HARTMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 100

376 N.E.2d 100

176 Ind.App. 375

Phillip HARTMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1-977A215.

Court of Appeals of Indiana,First District.

May 15, 1978.

Vincent S. Taylor, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Presiding Judge.

Defendant-appellant Phillip Hartman (Hartman) brings this appeal from his conviction in a trial by jury of the crimes of Theft, ¹ Automobile Banditry ² and Third Degree Burglary. ³

The evidence most favorable to the State shows that at 12:45 a.m. on November 28, 1974, deputy sheriffs from Morgan County discovered a green and white pickup truck parked near the then Penn-Central railroad tracks in rural Morgan County. Six new railroad crossties were found in the bed of the truck, which was registered to Mrs. Shirley Hartman, wife of defendant. Railroad crews had been working on the tracks in the area and new crossties had been deposited along the tracks at 6 to 8 foot intervals, for use by the railroad in its repair work.

No one was found in the vicinity of the truck, although deputies heard noises of someone fleeing through a nearby field. The deputies had the truck with its load of ties towed by wrecker to Smith's Garage in Martinsville where it was placed in the impoundment lot (an area enclosed by fencing used to store impounded vehicles).

A railroad policeman from Penn-Central inspected the ties and identified them as being the property of the railroad on the basis of the "P-C" or Penn-Central markings stamped in the end of each tie. The value of each tie was established to be approximately $12. No one had given Hartman permission to take the crossties.

Later, the wire fence surrounding the impoundment lot was cut and the truck with its load of ties was driven away. The truck was discovered in Hartman's driveway two weeks after its disappearance.

One witness testified that Hartman had come to the witness' home in Bloomington on the night of the theft, and told the witness that he (Hartman) was in a "jam" over the crossties, and that he had slipped away from sheriff's deputies while they were looking at his truck. The witness further stated that he drove Hartman to Martinsville on the night of December 1, for the expressed purpose of getting Hartman's truck from the impoundment lot. After Hartman disposed of the ties, the witness followed Hartman to Indianapolis where Hartman parked the truck in the parking lot at the Chevrolet plant where both men worked. The truck remained at the Chevrolet lot for two or three weeks until Hartman took it home.

The witness also testified that Hartman informed him that he left the truck in Indianapolis to keep police from finding it, that he had cut his way into the impoundment lot by cutting the fence and that he had dumped the ties into a river bottom on the way to Indianapolis. Hartman also told the witness that he had stolen all the ties used to build a fence around his house. Railroad ties were found in a new fence on Hartman's property.

At a trial by jury, Hartman was convicted on one count of Theft, Third-Degree Burglary and Automobile Banditry. Judgment was entered on only two verdicts with Hartman being sentenced to 1 to 5 years imprisonment at Indiana Department of Corrections on the Automobile Banditry Conviction, and a $500 fine on the Third Degree Burglary Charge. ⁴ After the timely filing of his Motion to Correct Errors which was overruled by the court, Hartman filed his praecipe and brings this appeal.

Hartman raises the following issues for our review. ⁵

(1) Whether the trial court erred in sustaining the State's Motion to Limine prohibiting Hartman from presenting his alibi defense for failure to file a timely and correct notice of alibi?

(2) Whether the trial court erred in prohibiting Hartman from testifying concerning his alibi?

(3) Whether the convictions of theft and auto banditry were contrary to law and not supported by sufficient evidence?

I.

Hartman alleges that the trial court erred in sustaining the State's Motion in Limine prohibiting him from presenting his alibi defense for failure to file a proper and timely notice of alibi specifying the exact place where Hartman claimed to have been at the time of the offense charged. Hartman maintains that his failure to meet the requirements of IC 1971, 35-5-1-1 was for good cause shown, and thus exempted from the exclusionary provisions of IC 1971, 35-5-1-3.

IC 1971, 35-5-1-1 through 3 set forth the following:

"35-5-1-1 (9-1631). Notice to prosecuting attorney when evidence of alibi to be offered Exception. Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, not less then ten (10) days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense. The notice shall include specific information in regard to the exact place at which the defendant claims to have been at the time stated in the indictment or information as the time of such offense. The provisions of this chapter (35-5-1-1 35-5-1-3) shall not apply in case the court sets the trial for a date less than fourteen (14) days ahead. . . .

35-5-1-2 (9-1632). Contents of notice to prosecuting attorney Second notice by defendant. In the defendant's notice, required under this chapter (35-5-1-1 35-5-1-3), the defendant may also expressly require the prosecuting attorney to file and to serve upon the defendant or upon his counsel a specific statement in regard to the exact date which the prosecution proposes to present at the trial as the date when, and the exact place which the prosecution proposes to present at the trial as the place where the defendant was alleged to have committed or to have participated in the offense. If the defendant's notice requires such statement by the prosecuting attorney, or if the prosecuting attorney proposes to present at the trial as the specific date when the defendant committed or participated in the offense a date other than the date stated in the defendant's notice, the prosecuting attorney shall file and serve such statement upon the defendant or upon his counsel not later than eight (8) days before the trial. If the prosecuting attorney's statement to the defendant names a specific date other than the date which is stated in the indictment or information and in the defendant's notice, the defendant shall not later than four (4) days after the filing of the prosecuting attorney's statement file and serve upon the prosecuting attorney defendant's second notice presenting for such changed date the same details required for the original notice. . . .

35-5-1-3 (9-1633). Failure to file notices and statements Evidence excluded. In the event of the failure of the defendant to file and to serve the defendant's original notice, as prescribed herein or the defendant's second notice as prescribed herein, or in the event of the failure of the prosecuting attorney to file and to serve the prosecuting attorney's statement as prescribed herein, the court may in its discretion extend the time for filing the same. At the trial, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney the defendant's original notice of alibi as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish an alibi. At the trial, if it appears that the prosecuting attorney has failed to file and to serve upon the defendant or upon his counsel the prosecuting attorney's statement as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the prosecuting attorney, exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in the defendant's original notice. At the trial, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney, the defendant's second notice as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish that he was at a place other than the place specified in the prosecuting attorney's statement, and that the time was other than the time stated in the prosecuting attorney's statement." . . . (Burns Code Ed.). Emphasis added).

On January 31, 1977, Hartman acting as his own attorney, filed his Notice of Alibi with the Prosecuting Attorney. The notice advised the State that Hartman would attempt to prove an alibi and requested the Prosecuting Attorney to specify the exact time, place, location and date of the offense. The Notice failed to include specific information in regard to the exact place the defendant-appellant claims to have been at the time of the offenses, as required by IC 1971, 35-5-1-1.

The State filed its response to the Notice of Alibi on February 3, 1977, as per IC 1971, 35-5-1-2 and on the day of trial, April 11, 1977, filed a Motion in Limine pursuant to IC 1971, 35-5-1-3, asking the trial court to exclude any evidence offered by Hartman to establish an alibi. The trial court granted the Motion in Limine.

While the State filed its reply to the defective notice of alibi on February 3, 1977, Hartman claims that he never received the State's response and was not made aware of the State's answer until four or five days prior to trial through a telephone conversation between the Prosecuting Attorney and Hartman's newly-acquired counsel. At that time, defendant-appellant's counsel related to the prosecutor the substance of Hartman's alibi and named the...