Hoy v. State

• Decision Date: 26 April 1983
• Docket Number: No. 3-782A149,3-782A149
• Parties: Danny Jake HOY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 31

448 N.E.2d 31

Danny Jake HOY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-782A149.

Court of Appeals of Indiana Third District.

April 26, 1983.

Donald C. Swanson, Jr., Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Following a jury trial, Danny Jake Hoy (Hoy) was convicted of involuntary manslaughter. ¹ Hoy appeals, raising eight issues: ²

(1) Whether the trial court erred in permitting the State to amend the information on the day trial began by correcting the number of the statute under which Hoy was charged;

(2) Whether the trial court abused its discretion in granting a continuance from morning to afternoon following a motion by the State based on the absence of subpoenaed witnesses;

(3) Whether the trial judge was properly qualified to pronounce judgment and sentence;

(4) Whether the information varied fatally from the evidence presented at trial;

(5) Whether admission of testimony by police officers regarding statements made to them by another officer and by witnesses to the crime who also testified at Hoy's trial constitutes reversible error;

(6) Whether the trial court erred in admitting into evidence a photograph of the victim after his arrival at the hospital;

(7) Whether the defendant should have been acquitted on the strength of his voluntary intoxication defense; and

(8) Whether the evidence was sufficient to support the verdict. ³

Affirmed.

On January 20, 1980, at approximately 12:45 a.m. Joseph Scheckel (Scheckel), Robert Lawson and Rosemary Strock were at B's Bar in Fort Wayne, Indiana, when Hoy entered. Hoy struck Scheckel in the face with his fist. Scheckel fell backwards onto the floor. Scheckel was taken to the hospital where he died on January 29, 1980.

I.

Amendment of Information

Hoy contends that the information was improperly amended, over his objection, on the day of trial. The original information was captioned "Class C Felony Information for Involuntary Manslaughter" and the applicable statute was given as "I.C. 35-42-1(1)." ⁴ The information charged that, on January 20, 1980, Hoy

"did then and [sic ] kill Joseph Scheckel while committing battery, by striking said Joseph Scheckel with his fist knocking him to the floor thereby inflicting a mortal injury upon the said Joseph Scheckel which directly and proximately caused his death on the 29th day of January, 1980...." ⁵

(Record, p. 5). On the day of trial, the court granted the State's motion to amend the information by citing the correct statute, IC 35-42-1-4.

The statute governing amendment of charges which was in effect at the time of Hoy's trial provided, in part:

"(a) An indictment or information which charges the commission of an offense shall not be dismissed but may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

* * *

* * *

"(6) Any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated...."

IC 1976, 35-3.1-1-5 (Burns Code Ed., 1979 Repl.) (emphasis added) (repealed and replaced by IC 1976, 35-34-1-5 (Burns Code Ed., Supp.1982)). This statute clearly permits an amendment to correct the statute cited in the information. Moreover, the defendant failed to move for a postponement, as allowed by IC 35-3.1-1-5(d), and he has shown no prejudice to his case resulting from the amendment. See Walker v. State (1980), Ind., 409 N.E.2d 626, 628.

Hoy argues that IC 35-3.1-1-5(e) ⁶ applies here. The amendment permitted on the day of Hoy's trial did not affect the theory of the prosecution or the identity of the offense charged. The facts alleged in the information were sufficient to inform Hoy of the charges against him. The information described the offense as involuntary manslaughter, a Class C felony. The amendment changed neither the factual allegations nor the characterization of the offense; it merely corrected an erroneous statutory citation. Therefore, IC 35-3.1-1-5(e) does not render the amendment improper. ⁷

Finally, Hoy argues that the amendment should have been signed by the prosecuting attorney rather than by his deputy. IC 35-3.1-1-5(b) requires that an information amended before arraignment in substance or form be signed by the prosecuting attorney. The information against Hoy was amended after arraignment, so IC 35-3.1-1-5(b) does not apply.

II. Continuance

On the day of trial, the trial court granted the State's request for a continuance from morning until 1:00 p.m. Hoy contends that the continuance was granted improperly because the State failed to comply with the requirements of IC 1976, 35-1-26-2 (Burns Code Ed., 1979 Repl.) (repealed). IC 35-1-26-2 provides for a continuance as a matter of right if any witness listed on the back of the information is absent and the State complies with the requirements for a statement as set forth in IC 1976, 35-1-26-1 (Burns Code Ed., 1979 Repl.) (repealed). In general, the granting of a continuance lies within the broad discretion of the trial court and will not be reviewed on appeal absent an abuse of that discretion prejudicing the complaining party. McConnell v. State (1982), Ind., 436 N.E.2d 1097, 1103. The statute does not restrict the court's discretionary powers; it compels the granting of a continuance under certain clearly delineated circumstances. See Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666, 669 (interpreting a previous version of the statute).

The record contains no evidence that the continuance was sought and granted pursuant to IC 35-1-26-2. The record reveals the following:

"States [sic ] moves for a continuance based on absence of subpoenaed witnesses.

"Defendant moves for Dismissal.

"Defendant's Motion is now denied.

"State is granted a continuance to 1:00 o'clock P.M. this date." (Record, p. 36).

It is well-established that, when a motion for a continuance is not based on statutory grounds or is not made in compliance with statute, the granting of such a continuance lies within the discretion of the trial court. Schalkle v. State (1979), Ind., 396 N.E.2d 384, 387; Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782. Hoy has not shown that he was prejudiced in any way by the continuance from morning until 1:00 P.M. of the same day. Therefore, we find no abuse of discretion.

III. Qualification of Trial Judge

The record indicates that Judge Hobbs presided over the trial as Judge Pro Tem. On January 20, 1982, after trial and before the entry of judgment, he was sworn in as Special Judge in this case. Hoy contends that, because the special judge was not selected in accordance with Ind.Rules of Procedure, Criminal Rule 13, the trial court did not have jurisdiction over his case. ⁸ Following the appointment of Judge Hobbs as Special Judge, Hoy filed a Motion for Continuance of Sentencing. Subsequently, following a hearing at which Hoy appeared in person and by counsel, judgment was entered on the jury's verdict and sentence was pronounced. Hoy filed a Motion to Correct Errors which was denied by the special judge.

Hoy made no objection to the appointment of the special judge until this appeal. Following the appointment, he filed motions with the trial court and appeared at the sentencing hearing. Although the record does not show that the appointment of Judge Hobbs as special judge complied with Criminal Rule 13, Hoy did not object to the irregularity. By failing to do so, he waived his right to raise the issue on appeal. See Pruitt v. State (1978), 269 Ind. 559, 382 N.E.2d 150. Not only did Hoy fail to object, he submitted to the authority of the special judge. Thus, his argument that the trial court had no jurisdiction to hear his case must fail. As the Indiana Supreme Court has stated, where both parties submitted to the judge's authority and did not question that authority until appeal, that judge

"was operating under color of authority and served as a judge de facto even if it could arguably be said that he was not acting as a judge de jure...."

Powell v. State (1982), Ind., 440 N.E.2d 1114, 1117 (citations omitted). ⁹ Hoy cannot submit to the authority of the trial judge without objection and then seek reversal of his conviction on the grounds that the special judge was not properly selected. ¹⁰

IV.

Variance

Hoy contends that the charging information contains a fatal variance from the evidence presented at trial. The information charges that Hoy killed Scheckel while committing battery,

"by striking said Joseph Scheckel with his fist knocking him to the floor thereby inflicting a mortal injury upon the said Joseph Scheckel which directly and proximately caused his death...."

(Record p. 5). Hoy argues that the information charges that he directly inflicted the mortal wound, but that the evidence was that Scheckel died of an injury to the brain caused by a fall. We disagree for two reasons.

First, the evidence showed that Scheckel died of blood clots in his brain. The pathologist who performed the autopsy on Scheckel testified that clots were found both on the front and the back of the brain and that the clots in the front of the brain were not due to a blow to the back of Scheckel's head. This evidence supports a reasonable inference that the clots resulted from the blow to Scheckel's face from Hoy's fist.

Second, the information charges that Hoy hit Scheckel "knocking him to the floor " (emphasis added), thereby causing his death. The record contains evidence that Hoy hit Scheckel, Scheckel fell backwards onto the floor in response to that blow, and later died without regaining consciousness. Thus the evidence presented at trial was consistent with the cause of death as charged in the information.

Any variance between the information and the evidence would be fatal only if it misled the defendant in the preparation of his defense or was so great as...