James v. State, 20A04-9209-CR-326

• Decision Date: 28 October 1993
• Docket Number: No. 20A04-9209-CR-326,20A04-9209-CR-326
• Citation: 622 N.E.2d 1303
• Parties: Julius JAMES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1303

622 N.E.2d 1303

Julius JAMES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 20A04-9209-CR-326.

Court of Appeals of Indiana,

Fourth District.

Oct. 28, 1993.

Thomas A. Murto, Goshen, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Judge.

Defendant-Appellant Julius James appeals his conviction for Possession of Marijuana, a class D felony. IND.CODE 35-48-4-11. ¹ James also contends the trial court erred in revoking his probation from a prior conviction.

We affirm in part and reverse in part.

James raises the following restated issues for our review:

1. whether he was denied his right to speedy trial under Criminal Rule 4(B);

2. whether the stop of the vehicle he was driving was improper;

3. whether he was denied a fair trial because of references by State witnesses to his prior drug related activities, conviction, and probation status; and

4. whether his probation violation was supported by sufficient evidence.

During the early morning hours of February 15, 1992, Sergeant Edward Windbigler, of the Elkhart Police Department, was on patrol. Officer Windbigler noticed James enter a vehicle and turn onto an Elkhart road. Officer Windbigler also entered the road and drove behind James. While he was following James' vehicle, the vehicle exceeded the posted speed limit by fifteen miles per hour. The vehicle also turned left without James using his turn signal. Officer Windbigler activated his red lights and stopped James' vehicle. Officer Swygart, also in the area, stopped as well.

Officer Windbigler approached James' vehicle on the driver's side and asked James for his license and vehicle registration. Officer Swygart approached on the passenger side. As James reached into the glove compartment for the registration, Officer Swygart noticed a rolled cigarette in the ashtray of the vehicle and yelled "ashtray" to Officer Windbigler. Officer Windbigler shined his flashlight into the car and saw James attempt to shut the ashtray. The officer, however, was able to view a marijuana-like cigarette in the ashtray.

Officer Windbigler asked James to step from the car. The detective retrieved the suspected marijuana cigarette and examined it. He then arrested James for possession of marijuana.

James was charged with possession of marijuana and possession of cocaine from this incident. After a trial, the jury found him not guilty of possession of cocaine and guilty of possession of marijuana. ²

James first contends he should have been discharged because he was not afforded a trial within the 70 day period designated in Ind.Crim. Rule 4(B)(1). In pertinent part, the rule states:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar....

James filed a "Motion for Early Trial" on March 4, 1992. Trial was subsequently scheduled for May 14, 1992, a date one day outside the 70 day speedy trial period. James did not object to the setting of the trial date outside the 70 day period.

A movant for an early trial must "maintain a position which is reasonably consistent with the request that he has made." Wilburn v. State (1982), Ind., 442 N.E.2d 1098, 1103 (citing Rutledge v. State (1981), Ind., 426 N.E.2d 638, 640). When a movant for an early trial on a date within the 70 day period has trial set for a date outside the limit and he does not then object to the setting of such date, "he has abandoned his request and the motion ceases to have legal validity." Id.

James notes the trial was not held on the scheduled date of May 14, 1992, but on May 28, 1992. He cites State v. Washington Circuit Court (1987), Ind., 514 N.E.2d 838, for the proposition that acquiescence outside the early trial period only waives rights up to and including the original date set outside the 70 day period.

We find Washington does not apply in the present case. Washington pertains to waiver of a trial date outside the one year period stated in Crim.R. 4(C). It does not apply to a case arising under Crim.R. 4(B) wherein acquiescence constitutes a complete abandonment of the early trial motion.

James contends the trial court erred in not granting his motion to suppress the evidence garnered from the search of the vehicle he was driving. He argues the stop of his vehicle was in violation of IC 9-30-2-2, which provides:

A law enforcement officer may not arrest or issue a traffic information and summons to a person for a violation of an Indiana law regulating the use and operation of a motor vehicle on an Indiana highway or an ordinance of a city or town regulating the use and operation of a motor vehicle on an Indiana highway unless at the time of the arrest the officer is:

(1) wearing a distinctive uniform and a badge of authority; or

(2) operating a motor vehicle that is clearly marked as a police vehicle;

that will clearly show the officer or the officer's vehicle to casual observations to be an officer or a police vehicle. This section does not apply to an officer making an arrest when there is a uniformed officer present at the time of the arrest.

He further argues that if the reason for the stop of the vehicle was truly based upon his traffic violations, then Officer Windbigler, who was in plainclothes and an unmarked car at the time of the stop, should have summoned a uniformed officer or an officer operating a marked police vehicle to assist him in the stop. He cites State v. Whitney (1978), 176 Ind.App. 615, 377 N.E.2d 652, in support of his argument.

In Whitney, an off-duty state policeman who was not in uniform or in a marked police vehicle stopped a motorist for an alleged traffic violation. When the motorist exited his car, he noticed the officer's vehicle had personal license plates. The officer, who the motorist thought was a drunk impersonating an officer, approached and told the motorist he was under arrest. An argument ensued and the officer pulled out a gun which the motorist recognized was not a standard police weapon. The officer eventually obtained the motorist's license, and refused to return it. The officer and the motorist agreed to fight over possession of the license, but while the motorist was removing his coat the officer hit him in the back of the head with his pistol. The officer eventually shot the motorist in the groin during a subsequent struggle. The State appealed an award of damages to the motorist for false arrest, false imprisonment, and personal injury. This court ruled the damages for false arrest were appropriate because under the predecessor statute to IC 9-30-2-2, the officer was forbidden to effect the arrest. In so ruling, the court held an arrest had occurred because the officer took the motorist's license in order to restrict the motorist's movement.

IC 35-33-1-5 defines the term "arrest" as "the taking of a person into custody, that he may be held to answer for a crime." Here, Officer Windbigler stopped the vehicle to investigate James' erratic driving. Although the stop of a vehicle is a detention, and thus an arrest in a technical sense, it is not a "taking of a person into custody." It would arguably have been better if Officer Windbigler called for the assistance of a uniformed police officer in making the stop; however, the stop itself was not an arrest as defined in IC 35-33-1-5 and used in IC 9-30-2-2. Thus, the trial court did not err in denying the motion to suppress on the basis that the stop violated IC 9-30-2-2.

James contends the trial court erred in allowing the deputy prosecutor and State witnesses to continuously refer to 1) his prior encounters with police officers, 2) his former imprisonment on a drug conviction, and 3) his status as a probationer. James argues the cumulative effect of these continuous references deprived him of a fair trial. ³

Evidence of other crimes, wrongs, or acts "is generally inadmissible to prove commission of the present crime." Clark v. State (1989), Ind., 536 N.E.2d 493, 494; Schumpert v. State (1992), Ind.App., 603 N.E.2d 1359, 1361. It is inadmissible because " 'its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes.' " Penley v. State (1987), Ind., 506 N.E.2d 806, 808 (quoting Schnee v. State (1970), 254 Ind. 661, 662, 262 N.E.2d 186, 187). See also Schumpert, supra. As Judge Barteau noted in Street v. State (1991), Ind.App., 567 N.E.2d 1180, trans. denied:

The general rule addresses concern that a jury will convict solely on an inference of bad character flowing from evidence of the defendant's extrinsic offense, which would violate our jurisprudential tenet against punishing defendants for what they are, rather than what they did. Two additional reasons support a bar against admission of extrinsic offense evidence: (1) to relieve a defendant of the need to respond to unexpected accusations, and (2) to decrease the chances that a jury will become confused by collateral issues or have its attention diverted from the charged crimes. (Citations omitted).

567 N.E.2d at 1184.

Recently, in Hardin v. State (1993), Ind., 611 N.E.2d 123, our supreme court stated the reasons for the rule:

The rationale for this rule is predicated upon our fundamental precept that every defendant should only be required to defend against the specific charges filed. In instances where evidence of prior uncharged misconduct is admitted at trial, a defendant would be forced to refute these allegations as well as defend against the crime specifically charged. If a court were to...