Lockridge v. State, 1--976A167

• Decision Date: 10 February 1977
• Docket Number: No. 1--976A167,1--976A167
• Citation: 172 Ind.App. 141,359 N.E.2d 589
• Parties: Richard E. LOCKRIDGE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 589

359 N.E.2d 589

172 Ind.App. 141

Richard E. LOCKRIDGE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--976A167.

Court of Appeals of Indiana, First District.

Feb. 10, 1977.

Rehearing Denied March 15, 1977.

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

Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

The defendant-appellant, Richard Lockridge, appeals his convictions of armed robbery and attempted armed robbery ¹ for which he received two concurrent ten (10) year sentences. He presents the following issues for our review:

1. Whether the trial court erred in denying the defendant's motion for continuance?

2. Whether the trial court erred in overruling the defendant's challenge to the array of jurors?

3. Whether the trial court erred in admitting into evidence testimony concerning other offenses committed by the defendant?

4. Whether the jury's verdict is supported by sufficient evidence?

5. Whether the trial court erred in refusing to give defendant's tendered instruction on voluntary intoxication?

We affirm.

The evidence most favorable to the State reveals that at approximately 3:30 A.M. on August 8, 1975, a black man identified as Richard Lockridge, approached the Stop-n-Go store in Evansville, Indiana. Miss Donna Adcock, the store's clerk, was sweeping the store's lot when she first noticed Lockridge walking toward her. Miss Adcock testified that Lockridge ordered her 'to get in the store quick'. She obeyed, and as they entered the store, Lockridge threatened to kill her if she didn't follow orders.

After entering the store, Miss Adcock, pursuant to Lockridge's orders, opened the cash register drawers and lay face down on the floor behind the counter. While lying on the floor, Miss Adcock heard the robber removing the money from the registers. At that point, she heard someone enter the store's front door. She then heard Lockridge tell the other person to 'hold it, give me your wallet'. Three shots rang out, and Miss Adcock jumped up to see Officer David Cook holding a gun to Lockridge's head.

David Cook, and off-duty Evansville police officer, had stopped by the Stop-n-Go store for a pack of cigarettes. Observing no one in the store, he called out for the clerk. Lockridge moved from behind the counter and exclaimed that 'this is a hold-up, give me your wallet or I'll kill you'. Cook testified that, as Lockridge came into view, he noticed a sharp object protruding from Lockridge's jacket. Assuming that Lockridge held a weapon, Officer Cook drew his revolver and pointed it at him. Lockridge repeated his threat and started to move away from the counter. Cook fired three times, and Lockridge fell to the floor wounded. Cook walked over to Lockridge and conducted a search of his body. No weapons were found on Lockridge's person, but Cook observed a meat fork beneath the body. Cook also observed a brown shaving kit full of money laying beside Lockridge.

Following the arrival of other officers, Lockridge was taken into custody and transported to a hospital. After recuperating from his injuries, he was tried and convicted by jury.

Initially, Lockridge claims that the trial court erred in denying his motion for continuance. Lockridge argues that the uncontroverted evidence shows that he was neither physically nor mentally able to stand trial or assist in the preparation of his defense.

Lockridge filed his motion on the day of trial. Attached to the motion was a physician's statement saying that Lockridge was unable to stand trial on that day.

The statute controlling Lockridge's request for a continuance states, in pertinent part, that:

'If the motion for continuance is based upon the illness of the defendant or of a witness, the motion shall be accompanied by the oral testimony, in open court, or by a written statement of a physician . . ., presenting the nature of the illness and the probable duration of his incapacity to attend trial. Such written statement of the physician . . . shall be sworn to by such physician . . . before a notary public or other officer authorized to administer an oath.' IC 1971, 35--1--26--1 (Burns Code Ed.).

Although Lockridge attached a physician's statement to his motion for continuance, the statement was not executed in compliance with the statutory requirements. The statement was not notarized, neither did it present the nature of the illness nor the probable duration of the incapacity. Failing to comply with the statute, Lockridge's motion was properly overruled by the trial court.

Lockridge next argues that the trial court erred in overruling his challenge to the array of petit jurors. He orally challenged the array on the grounds that: (a) the jurors were not called to the jury box in the same order in which their names were drawn for service; and (b) the court clerk failed to certify the list of jurors drawn for service.

IC 1971, 33--15--22--1 (Burns Code Ed.), provides, in part, that:

'Provided, That the order of names as listed in the panel and as called for service shall be the same order as that in which the names are drawn from the box, as herein provided. The clerk shall at the time of drawing such prospective jurors, enter a list of names so drawn, upon the order-book of the court, in the same order in which the names are drawn from the box, and he shall attach his certificate of the fact. The clerk shall issue venires for such jurors as such courts may direct. The sheriff or bailiff shall then call the jurors to the jury box in the same order as that in which their names are drawn, from the box and certified thereto.'

The record clearly indicates that the trial court did not call the prospective jurors to the jury box in the same order as that in which their names were drawn for service. However, our legislature has specifically exempted the Vanderburgh Circuit and Superior Courts from complying with this requirement. In these exempted courts, '. . . jurors need not serve in any particular order in which they are drawn by the jury commissioners . . ..' IC 1971, 33--5--43--21 (Burns Code Ed.). Thus, Lockridge's challenge on this ground must fail.

Lockridge correctly asserts that the clerk failed to certify the jury list as required by IC 1971, 33--15--22--1 (Burns Code Ed.). We recently considered this same procedural irregularity in Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305. We determinated in Grzesiowski that such procedural error was harmless in the absence of a clear showing of prejudice and harm.

Lockridge argues that the clerk's error prejudiced him by excluding blacks from the jury panel. Our Supreme Court, disposing of a similar argument, recently stated in Tewell v. State (1976), Ind., 339 N.E.2d 792, 797, that:

'The right to an impartial jury, precludes systematic and intentional exclusion of any particular class of persons, but it does not require that any particular class be represented. A defendant carries the initial burden of demonstrating that purposeful discrimination existed.' (Citations omitted.).

Lockridge has failed to meet the burden set forth in Tewell. We are unable to see how the clerk's error resulted in a purposeful discrimination prejudicing Lockridge's right to a fair and impartial trial by jury. Therefore, we hold such procedural irregularity to be harmless error.

Absent a showing of reversible error, the trial court's ruling on Lockridge's challenge must be upheld....