Hartman v. State

• Decision Date: 04 June 1975
• Docket Number: No. 2--174A37,2--174A37
• Citation: 328 N.E.2d 445,164 Ind.App. 356
• Parties: Phillip HARTMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 445

328 N.E.2d 445

164 Ind.App. 356

Phillip HARTMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--174A37.

Court of Appeals of Indiana, Second District.

June 4, 1975.

Rehearing Denied July 8, 1975.

Lawrence O. Sells, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., G. Phillip Duckwall, Deputy Atty. Gen., for plaintiff-appellee.

Before SULLIVAN, P.J., and BUCHANAN and WHITE, JJ.

PER CURIAM:

Phillip Hartman's appeal from his conviction of theft ¹ presents three issues for review:

1. Did the trial court err in sustaining the State's objection to the admission of the results of a poylgraph examination given Hartman?

2. Is the evidence sufficient to sustain the conviction?

3. Was Hartman denied his right to cross-examine a State's witness?

We affirm.

The facts of this case viewed most favorably to the State are as follows:

On December 8, 1973 Paul Harris, Inc. Store in the Speedway Shopping Center in Marion County, Indiana was equipped with an alarm system which is triggered when unsold merchandise to which an inventory control tag is attached passes between two boxes located on either side of and about 3 feet inside the front door of the store. Shields separate this door area from the rest of the Store and prevent both tags on nearby merchandise from triggering the alarm and persons from accidentally wandering into the area. The only cash register or check-out counter is in the center of the store.

At about 12:40 p.m. on that day, Cheryl Mason, Store Manager, heard the alarm go off and saw Hartman, whom she had previously observed looking at merchandise, at the door area. She approached him, asked if he had an inventory control tag with him and when Hartman replied that he did, she asked him to accompany her to the back room. There, Hartman reached underneath his jacket and produced a man's shirt belonging to Paul Harris, Inc. and having a value of $12.00.

ISSUE ONE: Hartman attempted to testify concerning a polygraph test administered to him and the results of that test. The State's objection was sustained. On appeal, Hartman asserts first, that the State agreed to drop charges if Hartman passed a polygraph test and should be bound by that agreement. The record does not contain any evidence indicating whether or not such an agreement was made. This omission, reflecting Hartman's failure to properly present this issue to the trial court, prevents this court from reaching the merits of Hartman's assertion.

The proper procedure for a defendant to assert immunity with respect to the crime charged, is for the defendant, either before or during trial to file a Motion to Dismiss the charges. IC 1971, 35--3.1--1--4, Ind.Ann.Stat. § 9--906 (Burns Supp., 1974). Upon the filing of this written motion, the State would have been obligated to either admit or deny the existence of an agreement and, if denied, the trial court would have been obligated to conduct a hearing to resolve this issue of fact. IC 1971 35--3.1--1--8, Ind.Ann.Stat. § 9--910 (Burns Supp., 1974). By not filing a Motion to Dismiss and remaining silent hoping for an acquital, when that acquittal does not occur, Hartman is precluded from asserting the existence of an agreement granting him immunity from prosecution. Brown v. State (1970), 254 Ind. 504, 260 N.E.2d 876.

Hartman also asserts the sustaining of the State's objection to his testimony concerning the polygraph test was error because, the test was taken at the suggestion of the State and the State had impliedly consented to the admission of the results. Even assuming consent by the State, this assertion is without merit. In Carpenter v. State (1968), 251 Ind. 428, 241 N.E.2d 347, our Supreme Court...