Lipps v. State, 31128
| Decision Date | 26 May 1970 |
| Docket Number | No. 31128,31128 |
| Citation | 254 Ind. 141,258 N.E.2d 622 |
| Parties | Buford R. LIPPS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William T. Laswell, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., of Indiana, Curtis Plopper, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the judgment of the Marion Criminal Court Division II entered against the appellant after he had been found guilty, after a trial by jury, of the crime of inflicting physical injury while attempting robbery as charged in Count II of the indictment.
The appellant's motion for a new trial, in which it was alleged only that the verdict of the jury was not sustained by sufficient evidence and is contrary to law, was filed on December 22, 1966, and overruled on the same day. On appeal the appellant's only assignment of error is that the trial court erred in overruling the appellant's motion for a new trial.
The indictment charging the appellant was filed on September 9, 1966, and is in two counts which read, in pertinent part, as follows:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that BUFORD RAY LIPPS, GERALD HAINES and GEORGE HESTAND on or about the 14th day of JULY, A.D.1966, at and in the County of Marion and in the State of Indiana, each being then and there over the age of sixteen (16) years, did then and there unlawfully, feloniously, forcibly, by violence and by putting DANIEL WHEELER in fear with a firearm, to-wit: a Shotgun, the exact nature and description of which is to the Grand Jurors unknown, attempt to take from the person and possession of the said DANIEL WHEELER United States currency, of which United States currency the said DANIEL WHEELER then and there held in his possession and which money was then and there the property of SPEED EAGLE LOUNGE, INC., d/b/a DAYMON'S LOUNGE, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.
COUNT TWO:
The Grand Jurors aforesaid, upon their oaths aforesaid, do further present that BUFORD RAY LIPPS, JAREL HAINES and GEORGE HESTAND, on or about the 14th day of July, A.D.1966, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, forcibly, by violence and by putting DANIEL WHEELER in fear attempt to take from the person and possession of the said DANIEL WHEELER United States currency, which money the said DANIEL WHEELER then and there held in his possession and which money was then and there the property of SPEED EAGLE LOUNGE, INC., d/b/a DAYMON'S LOUNGE, and the said BUFORD RAY LIPPS, JAREL HAINES and GEORGE HESTAND while engaged in committing the crime of Attempted Robbery as aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the leg of the said DANIEL WHEELER with a shotgun then and there held in the hands of the said BUFORD RAY LIPPS, JAREL HAINES and GEORGE HESTAND, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
From the evidence adduced at trial, it appears that at approximately 1:20 a.m. on July 14, 1966, three armed subjects entered a tavern known as Daymon's Lounge located at 2070 Lafayette Road in Marion County, Indiana. Shortly after the three men entered several shots were fired, and one of the armed men called out, Two police officers who were in the tavern at that time jumped up from the table where they were sitting. One officer proceeded toward an armed subject who had gone to the cash register. One of the men, who was armed with a pistol, fired at the officer, who, in turn, returned the fire. Subsequently, numerous shots were fired, both by the police officers and the armed subjects. When the shooting was over the two police officers and the bartender were wounded, and one of the subjects was dead. The other two holdup men escaped.
The dead holdup man was subsequently identified as Thomas Pierce. The other two men could not be identified since, at the time of the holdup, their faces were covered with stocking masks.
The appellant was subsequently implicated in the shooting and attempted robbery, and a warrant was issued for his arrest on July 29, 1966. On August 12, 1966, the appellant was arrested by a deputy sheriff who recognized the appellant while the appellant was walking along highway 421.
The only issue argued by the appellant on this appeal is that the trial court erred in allowing into evidence, over the appellant's objections, testimony of a newspaper reporter who testified about a conversation he had with the appellant and George E. Hestand while the two were in jail awaiting trial.
The State contends that this argument is not properly before this Court since the objections to the testimony were not specifically set out in the appellant's motion for a new trial pursuant to Supreme Court Rule 2--6, and for the further reason that the appellant's motion for a new trial and assignment of errors are not set out in the appellant's brief pursuant to Rule 2--17.
It is true, as the State contends, that the appellant's appeal fails to meet the minimum procedural requirements as specified by the rules of this Court. However, we have followed a policy of deciding appeals on their merit where it is reasonable and practical for us to do so. Locke v. State (1969), Ind., 250 N.E.2d 372; Lytle v. State (1968), Ind., 241 N.E.2d 366. Furthermore, refusal to determine this appeal on its merits would merely create additional burdens later on for both this Court and the trial court since the appellant may pursue post conviction relief under either Rule PC--1 or PC--2.
Since post conviction relief is now available for those whose appeals have been adversely decided on procedural grounds, and since it is absolutely necessary for this Court to maintain an orderly system of procedure and in its operation to insure its integrity and to conserve the time and energy of the Court, we serve notice that procedural defects in appeals which are brought in the future may not be dealt with so leniently. Time and the increasing volume of cases militate against tolerance of the careless practices by too many attorneys who practice before this Court.
In saying this we do not mean to cast aspersions on the attorney who is representing the appellant in this appeal. The argument he presents to us is cogently and intelligently written and obviously represents a great deal of effort on his part. Moreover, he is not the same attorney who represented the appellant at trial and who filed the appellant's motion for a new trial.
Turning to the merits of the appeal before us, it is the appellant's contention that the trial court erred in allowing a newspaper reporter, one Richard Johnson, to testify, over the appellant's objection, to a conversation that he had with the appellant and George E. Hestand while the two were in jail awaiting trial.
According to the testimony of the witness, the wife of George E. Hestand called the witness' office and left a message that the appellant and Hestand wanted to speak with him. Mr. Johnson then stated that he arranged to see the appellant and Hestand in the jury room of Criminal Court II on either the 13th or 16th day of September, 1966. Mr. Johnson testified that during the course of the interview the appellant admitted shooting the bartender in Daymon's Lounge.
At trial the appellant objected to the testimony of the witness on the basis that any statements given to Johnson were given in confidence. The objections were correctly overruled by the trial court. Ind.Ann.Stat. § 2--1714 (1968 Repl.) provides that only the following shall be deemed privileged communications:
'2--1714. Who are incompetent.--The following persons shall not be competent witnesses:
Third. Attorneys, as to confidential communications...
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