Hunt v. State, 482S149
| Citation | 455 N.E.2d 307 |
| Decision Date | 21 October 1983 |
| Docket Number | No. 482S149,482S149 |
| Parties | Robert L. HUNT, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Susan K. Carpenter, Public Defender of Ind., C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Robert L. Hunt, Jr., was convicted by a jury in the Elkhart Circuit Court of class A felony armed robbery resulting in bodily injury. He was sentenced to thirty years imprisonment. Appellant now directly appeals and raises the following fifteen issues for our review:
1. alleged error in admission of testimonies of witnesses Kramer and Gentle;
2. denial of Appellant's Motion for Separate Trial;
3. denial of Appellant's Motions for Continuance;
4. denial of Appellant's Motion in Limine regarding the testimony of State's witness Starr 5. denial of Appellant's Motion for Mistrial predicated upon the State's alleged failure to produce certain exculpatory evidence;
6. denial of Appellant's Motion for Mistrial based on certain testimony suggesting Appellant's participation in an allegedly illegal line-up;
7. alleged error in sustaining the State's objections to certain of Appellant's attempts to develop evidence during trial;
8. alleged error in overruling Appellant's objections to certain of the State's attempts to develop evidence during trial;
9. denial of Appellant's Motion to Dismiss because of his allegedly illegal arrest;
10. denial of Appellant's request for separate peremptory striking during the selection of jurors;
11. sufficiency of the evidence;
12. denial of Appellant's Motion for Mistrial based on certain alleged prosecutorial misconduct;
13. denial of Appellant's Motion in Limine regarding certain evidence of Appellant's prior criminal conviction;
14. alleged error in grant of co-defendant Williams' Motion to Terminate Questioning while Appellant was questioning Williams during an offer to prove; and
15. alleged error in the giving and refusing of certain final instructions.
The facts adduced at trial tend to show that at approximately 11:00 p.m. on November 16, 1979, the Kroger Company Store at 1720 Fulton Street in Elkhart was the scene of an armed robbery committed by three men. One of the men struck Gerald Casselman, an employee of the Kroger Company, on his head several times with a pistol. Casselman was not able to identify any of the robbers. Witness Patricia Kramer, another Kroger employee, was able to identify both Appellant-Defendant Hunt and Co-defendant Williams. Witness Pam Gentle, also an employee of the store, was able to identify Hunt. Although Gentle could not positively identify Co-defendant Williams, she was able to describe his general physical features and testified that the "big man" in the trio of robbers looked like Williams. The robbers took $94.00 in cash from the store. Casselman suffered a partial loss of hearing in one ear which necessitated a physician's care.
Appellant now contends that the trial court erred by allowing State's witnesses Gentle and Kramer to make in-court identifications of him. Appellant filed before trial a Motion to Suppress the testimonies of witnesses Gentle, Kramer and Casselman based on the claim that a pre-trial line-up attended by said witnesses was improperly conducted. After a hearing, the trial court granted Appellant's Motion to suppress the testimony of witness Casselman but denied said motion relative to any in-court identifications by witnesses Gentle and Kramer. The trial court so ruled finding that Kramer and Gentle had a basis for their identifications independent of the line-up. Appellant now claims that the trial court committed reversible error by this ruling. The record shows that Appellant made no objection to the identification testimonies of witnesses Kramer and Gentle at the time those identifications were offered during trial. Appellant accordingly did not preserve any error on this issue and has waived it. Minneman v. State, (1982) Ind., 441 N.E.2d 673, cert. denied --- U.S. ----, 103 S.Ct. 2099, 77 L.Ed.2d 307; Andrews v. State, (1982) Ind., 441 N.E.2d 194; Pavone v. State, (1980) Ind., 402 N.E.2d 976, reh. denied.
Appellant next claims that the trial court committed error by denying his Motion for a Separate Trial from Co-defendant Williams. Ind.Code Sec. 35-34-1-11(b) (Burns Supp.1983) directs a trial court to order separate trials whenever the court determines that separate trials are necessary to protect a defendant's right to a speedy trial or to promote a fair determination of the guilt or innocence of a defendant. It is clear, therefore, that the decision to grant or deny a motion for a separate trial is within the sound discretion of the trial court. Appellant must show that in light of what actually occurred at trial, the denial of a separate trial subjected him to such prejudice that the trial court abused its discretion in refusing to grant his motion for severance. Crenshaw v. State, (1982) Ind., 439 N.E.2d 620; Chandler v. State, (1981) Ind., 419 N.E.2d 142; Gutierrez v. State, (1979) 271 Ind. 639, 395 N.E.2d 218. Appellant now claims that he was prejudiced in four ways by his joint trial.
Appellant first argues that the identification evidence available to the State as to each defendant was substantially different thereby necessitating separate trials. The alleged difference was because the trial court granted Appellant's Motion to Suppress evidence of a line-up relative to himself but did not suppress that evidence as to Co-defendant Williams. Appellant suggests that he was especially prejudiced since witness Kramer had a greater independent basis to identify Williams which must have tended to bolster in the jury's mind her testimony against appellant. As the State points out, none of the three eyewitnesses testified regarding any line-up involving Co-defendant Williams. Casselman could not make any identification. Gentle positively identified Appellant but could do no more than identify a similarity between Williams and the heavier robber. Kramer positively identified both Appellant and Williams. We find no reason to presume that the testimonies of these three witnesses would have been different in a separate trial, hence we find no prejudice shown in this regard.
Appellant secondly claims that he was prejudiced by Williams' refusal to testify. Appellant claims specifically that if Williams had testified, his testimony would have corroborated Appellant's alibi. As the State points out, Appellant offers no evidence to show that Williams would have testified for Appellant in a separate trial. There is, therefore, no prejudice shown on this issue.
Third, Appellant argues that evidence showing that Appellant lived with Co-defendant Williams' sister was prejudicial to Appellant. Appellant's contention is that the evidence of his relationship to Williams' sister somehow tied him to Williams and made his conviction along with Williams more likely. As we previously have indicated, the identification evidence relative to Appellant was stronger than the identification evidence against Williams.
Finally, Appellant argues that the joint trial prejudiced him by forcing him to share peremptory challenges with his co-defendant. Ind.Code Sec. 35-37-1-3(d) (Burns Supp.1983) provides that when several defendants are tried together, they must join their challenges. Provisions of this statute have been upheld previously by this Court. Morris v. State, (1977) 266 Ind. 473, 364 N.E.2d 132, cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462; Swininger v. State, (1976) 265 Ind. 136, 352 N.E.2d 473; Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792; Martin v. State, (1974) 262 Ind. 232, 317 N.E.2d 430, cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841. Furthermore, Appellant has no constitutional right to a given number of peremptory challenges nor does Appellant indicate that he wished to excuse certain jurors but could not for lack of peremptory challenges. Appellant has shown no prejudice to himself, therefore we find no error on this issue.
Appellant next claims that the trial court erred by denying certain of his Motions for Continuance. Appellant's claim is that the denial of these continuances denied him effective assistance of counsel. The record shows that charges were filed against Appellant on January 15, 1980. The first trial date set by the trial court was May 19, 1980, but on May 2, 1980, Appellant's trial counsel moved for a continuance. That motion was granted and trial was set for November 10, 1980. On August 1, 1980, Appellant's trial counsel again filed for a continuance. On November 3, 1980, the trial court continued the trial to January 26, 1981. On January 23, 1981, the State requested a continuance which was granted until March 30, 1981. On March 30, 1981, Appellant's trial counsel informed the trial court of a possible conflict of interest because he represented both co-defendants; the trial court again continued the trial until June 1, 1981. On April 6, 1981, the State noted the problem with Appellant's defense counsel and filed a Motion to Disqualify Appellant's defense counsel who had continued to represent Appellant after the court appointed another counsel for Appellant's co-defendant. On April 9, 1981, the trial court granted the State's motion. On April 30, 1981, Appellant's new trial attorney filed his appearance and also filed a Motion to Continue stating that since trial was set for June 1, 1981, he would have insufficient time to prepare. Said Motion was denied. On May 29, 1981, Appellant's trial attorney renewed his Motion for Continuance claiming that he had difficulty in receiving all of the evidence he had requested of the State. That second Motion also was denied. During a hearing regarding a motion in limine on June 1, 1981, Appellant's...
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