Holland v. State

• Decision Date: 24 August 1976
• Docket Number: No. 1075S273,1075S273
• Parties: john M. HOLLAND, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 752

352 N.E.2d 752

265 Ind. 216

john M. HOLLAND, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1075S273.

Supreme Court of Indiana.

Aug. 24, 1976.

John D. Clouse, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GIVAN, Chief Justice.

Appellant was charged by indictment in two counts. Count I charged first degree murder; Count II charged murder in the commission of a robbery. A jury trial resulted in a finding of guilty of second degree murder as to Count I and guilty as charged on Count II. The trial court entered judgment sentencing the appellant to fifteen to twenty-five years under Count I and to life imprisonment under Count II. The trial court further ordered that the sentences should commence after the appellant had been released from the Kentucky State Penitentiary where he was serving a sentence at the time of his trial.

The record discloses the following facts: On the evening of November 7, 1973, the decedent was introduced by Jerry McFarland to Mary Poggioli, who was a prostitute. The purpose of the introduction was to procure Miss Poggioli's services as a prostitute for the decedent. After going to several bars in town, the decedent and Miss Poggioli went to decedent's apartment where a disagreement occurred between them as to sexual acts desired by the decedent. No sexual acts were performed, however Miss Poggioli demanded a sum of money previously agreed upon, which the decedent refused. She left decedent's apartment, went to the nearby home of a friend, Darlene Faver. Jerry McFarland and Miss Faver were at the home.

After hearing Miss Poggioli's story, McFarland sent for the appellant Holland, who lived across the street. When Holland arrived McFarland gave him a .25 caliber pistol. McFarland, Holland and Miss Poggioli then discussed the possibilities of robbing the decedent because he was seen earlier to have been carrying a large sum of money of his person.

The three persons then went to the decedent's apartment. McFarland stayed outside while the appellant and Miss Poggioli went to the door. The appellant stood to one side while Miss Poggioli stood in such a manner as to be visible through the 'night peeper hole' in the door. In response to her knock, the decedent opened the door and both she and the appellant entered. The decedent and the appellant did not know each other.

The decedent was seated on a couch eating a steak on a coffee table while he conversed with appellant and Miss Poggioli. During the conversation decedent held a steak knife in his hand. When the appellant demanded money from the decedent an argument began and Miss Poggioli fled from the apartment. She asked McFarland to go to the apartment. She was afraid the appellant would be hurt. As McFarland started toward the door the sould of a shot was heard. When McFarland came through the door he saw the decedent standing with his hand on his chest. In a few seconds he fell backwards. At that time the appellant was 'standing there with a gun in his hand.' McFarland left at once. Some five minutes later the appellant came from the apartment and the three returned to Miss Favor's apartment.

Shortly after returning to Miss Faver's apartment, McFarland, Mary Poggioli and the appellant returned to the decedent's apartment with other persons and proceeded to ransack the apartment, removing several objects of value.

Both McFarland and Miss Poggioli had been charged in this case. McFarland entered a plea of guilty to armed robbery and received a ten year sentence. Miss Poggioli entered a plea to accessory to voluntary manslaughter and was sentenced to two to twenty-one years. Each of them testified as State witnesses against the apellant.

McFarland testified that the appellant stated before going to the decedent's apartment that if he did not get the money for Miss Poggioli he would have to shoot and kill the decedent. Evidence showed that the decedent died of a gunshot wound from a .25 caliber pistol. The bullet was fired from above the point where it entered the decedent's chest. It traveled through the decedent's heart and lodged near the spine.

Appellant's first contention of error is that the trial court erred in overruling and denying his motion to dismiss, which motion was in four parts. We will address ourselves to each of the four parts separately.

(1) 'There is duplicity of allegation in Counts I and II.' Here appellant argues that he was charged with two criminal offenses which actually constituted one transaction. We agree with the appellant in his factual conclusion that he was charged with two crimes growing out of a single transaction. However, such a charge is permissible. See Lee v. State, (1938) 213 Ind. 352, 12 N.E.2d 949; Knox v. State, (1905) 164 Ind. 226, 73 N.E. 255; Robbins v. State, (1976) Ind., 346 N.E.2d 251, 52 Ind.Dec. 466.

Appellant argues that the double charge placed him under a disability in that he was required to defend two charges when he should only have been required to defend one. We fail to see the logic of this reasoning. The case presented by the State was that the appellant had, in fact, killed the decedent in the perpetration of a robbery. We fail to see how the alleging of murder in two separate counts increased the burden upon the appellant in making his defense.

The appellant cites Thompson v. State, (1972) 259 Ind. 587, 290 N.E.2d 724, 34 Ind.Dec. 335. In so doing he recognizes that it is not squarely in point, but that it holds that the trial court may enter judgment and post sentence upon only one of the crimes which arise of a single transaction. We hold the trial court did not err in refusing to dismiss the charges against the appellant because of the two count indictment. However, we also hold the trial court was in error in presuming to pronounce sentence on both counts. This is in violation of the principles laid out in Thompson v. State, supra. The trial court should have sentenced the appellant to life imprisonment only on the conviction of a homicide while in the perpetration of a felony.

(2) 'The grand jury proceeding was defective pursuant to IC 1971, 35--3.1--1--7(b)(1) and (4) . . ..'

Appellant first claims the grand jury consisted of twelve persons. However, an examination of the record in this cause shows the grand jury actually consisted of six, as required by the statute.

Appellant next claims the grand jury was defective because the clerk did not certify to the drawing of the grand jurors' names, as required by the statute. However, he does not allege any bad faith on the part of the clerk nor does he show in what manner he was prejudiced by this failure on the part of the clerk. Without such allegations we hold any defect of this nature is harmless error. See Flowers v. State, (1956) 236 Ind. 151, 139 N.E.2d 185; Anderson v. State, (1941) 218 Ind. 299, 32 N.E.2d 705.

Appellant next claims the grand jurors were not called to the box in the order in which they were drawn. However, we cannot actually determine this from the record before us. Not all persons selected as prospective grand jurors qualify to serve as such. The mere fact that they may be assigned numbers at the outset of the selection process does not mean that those eventually serving on the grand jury must be called in a numerical sequence. We see no evidence in this record as to the sequence in which the jurors were actually called, but only the numbers of the jurors who eventually served. Even if we were to concede that this procedure was irregular, we see no reversible error in that there is nothing shown by this record that would be interpreted as being prejudicial to the fundamental rights of the appellant.

(3) 'Said defendant has been denied the right to a speedy trial.'

At the time of the indictment in this case the appellant was incarcerated in the State of Kentucky serving a sentence there. It is his claim that he was not afforded a trial within the time required under IC 35--2.1--2--4 (Burns 1975) the pertinent part of which reads as follows:

ARTICLE 3

'(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and decisions of the state parole agency relating to the prisoner.'

On August 26, 1974, the appellant caused a letter to be sent to the Vanderburgh County Prosecutor's officer requesting a trial on the charge in Vanderburgh County. The record does not disclose when that letter was actually received by the prosecuting attorney in Vanderburgh County, however, it does show that on September 4, 1974, a reply was sent to that letter from the prosecutor.

The first trial of the appellant was commenced on February 23, 1975. This was within the time prescribed by the statute, in spite of the fact ...