Martin v. State, 1082S388

Citation457 N.E.2d 1085
Decision Date09 January 1984
Docket NumberNo. 1082S388,1082S388
PartiesAubrey Lee MARTIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

K. Richard Payne, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The Defendant was convicted of Armed Robbery, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1979) and sentenced to twenty (20) years imprisonment. His direct appeal presents the following three (3) issues:

1. Whether the trial court erred in refusing to grant motions for continuance and mistrial, both of which were predicated upon Defendant's absence from the proceedings;

2. Whether the evidence was sufficient to sustain the verdict;

3. Whether the trial court erred in giving two (2) of the State's instructions.

The record disclosed that on October 8, 1981, at approximately 11:45 P.M., the Defendant and Larry Brown, each armed with a gun, entered the office of Maloley's Central Bakery in Fort Wayne, Indiana where they encountered Donald Faulkner and Lew Lederman, bakery employees. Brown pointed his gun at Lederman and said, "Give us your money." As Lederman rose from his chair, Brown shot him in the upper chest. The Defendant pointed his gun at Faulkner's head and told him to give the Defendant his billfold; Faulkner complied. The Defendant and Faulkner then walked out of the office and to a cabinet which contained a box of change, which Faulkner also gave to the Defendant.

The Defendant and Brown exited toward the warehouse area where they first took money from Bobby Owens and then told Curtis Davis and Mike McCambell to "get back." Davis, who was the Defendant's cousin, positively identified both intruders. The Defendant and Brown subsequently went out the back door and over a fence. Two weeks later the Defendant was arrested, was given his Miranda advisements, and admitted to his role in the events.

* * *

* * *

ISSUE I

On the morning of the trial, the Defendant, who was free on bail, was present in court during voir dire examination of the jury panel. However, before the jury was sworn, the Defendant left the courtroom and could not be found. The trial judge denied the motion by Defendant's counsel for a continuance, issued a bench warrant for Defendant's arrest, and the trial was resumed. He later denied the motion for mistrial predicated upon the Defendant's absence from the proceedings. Defendant now argues that his constitutional right to be present during his trial was violated.

The rule is that the defendant must be personally present at every critical stage of the proceedings unless he knowingly and voluntarily waives that right. Taylor v. United States, (1973) 414 U.S. 17, 19, 94 S.Ct. 194, 195, 38 L.Ed.2d 174, 177 (per curiam); Bullock v. State, (1983) 451 N.E.2d 646, 647; Faison v. State, (1981) Ind., 428 N.E.2d 784, 786; Howard v. State, (1978) 268 Ind. 589, 592, 377 N.E.2d 628, 630, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708. The continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver. Shepler v. State, (1980) Ind., 412 N.E.2d 62, 66.

The record clearly established that the Defendant was aware of the proceedings, that he was present for a portion of the proceedings, and then voluntarily, knowingly, and without justification failed to reappear when the trial resumed a short time later. In Taylor, a case with a similar factual background, the Supreme Court reasoned:

"It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, ... entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, ... 'that a defendant who flees from a courtroom in the midst of a trial--where judge, jury, witnesses and lawyers are present and ready to continue--would not know that as a consequence the trial could continue in his absence.' " 414 U.S. at 20, 94 S.Ct. at 196.

The fact that the jury had not yet been sworn at the time that the Defendant absented himself from the proceedings does not affect our ruling that the Defendant knowingly and voluntarily waived his right to be present at his trial. See Brown v. State, (1979) Ind.App., 390 N.E.2d 1058,

1061-1062; Broecker v. State, (1976) 168 Ind.App. 231, 342 N.E.2d 886, 888 (transfer denied).

ISSUE II

The Defendant next argues that insufficient evidence existed to prove all of the necessary elements of robbery as a class A felony, and thus, to sustain his conviction. At the outset, we note our standard of review:

"Upon a review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses." Loyd v. State, (1980) Ind. , 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 341, 66 L.Ed.2d 105. (citations omitted).

Defendant contends that his absence from the trial precluded a proper identification; however, witnesses positively identified him as one of the participants in the crime. Two of the witnesses stated that the person who had been sitting at the defendant's table during voir dire examination of the jury was a participant in the crime, and the defendant's cousin, a witness who saw the defendant leave the bakery, identified the defendant by name; thus, he was properly identified as a perpetrator of the crime. See Broecker v. State, 342 N.E.2d at 890.

For the offense of Robbery to be committed, the statute requires a knowing or intentional taking of property from another person or from the presence of another person by using or threatening the use of force on any person or by putting any person in fear. The offense is a class A felony if it results in either bodily injury or serious bodily injury to any other person. In the instant case,...

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13 cases
  • Iseton v. State
    • United States
    • Indiana Appellate Court
    • December 27, 1984
    ... ... State, 259 Ind. 353, 287 N.E.2d 347 (1972) (three witnesses referred to "defendant" as the person who committed the crime). Identification by name, for example, is sufficient. Broecker v. State, 168 Ind.App. 231, 342 N.E.2d 886, 890 (1976). See also Martin v. State, 457 N.E.2d 1085 (Ind.1984) (sufficient identification, in defendant's absence, in witnesses' references to defendant's name and to the "person who had been sitting at the defendant's table during voir dire" of the jury); Bullock v. State, 451 N.E.2d 646 (Ind.1983) (identification ... ...
  • Jackson v. State
    • United States
    • Indiana Supreme Court
    • June 26, 2007
    ... ...          Freeman, 541 N.E.2d at 535 (citing Carter v. State, 501 N.E.2d 439, 440-41 (Ind. 1986); Martin v. State, 457 N.E.2d 1085, 1086 (Ind.1984)); see also Lampkins, 682 N.E.2d at 1273 ("The best evidence that a defendant knowingly and voluntarily waived his or her right to be present at trial is the defendant's presence in court on the date the matter is set for trial." (internal quotations and ... ...
  • Hopper v. Miller
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 16, 1997
    ... ... He was sentenced to two 30-year concurrent prison sentences The Indiana Supreme Court affirmed the conviction, Hopper v. State, 539 N.E.2d 944 (Ind.1989) (Hopper I ) Hopper was unsuccessful in seeking post-conviction relief in the Indiana trial court. and the Indiana ... See Edgecomb v. State, 673 N.E.2d 1185, 1193 (Ind.1996); Martin v. State, 457 N.E.2d 1085, 1087-88 (Ind.1984). See also United States v. James, 40 F.3d 850, 865 (7th Cir.1994); United States v. Burrell, 963 F.2d ... ...
  • Adams v. State
    • United States
    • Indiana Supreme Court
    • June 29, 1987
    ... ... Cape v. State (1980), 272 Ind. 609, 611, 400 N.E.2d 161, 163. We have held consistently that a defendant may waive his right to be present at his trial. Blatz v. State (1985), Ind., 486 N.E.2d 990; Martin v. State (1984), Ind., 457 N.E.2d 1085; Faison v. State (1981), Ind., 428 N.E.2d 784; Shepler v. State (1980), 274 Ind. 331, 412 N.E.2d 62. Waiver occurs where a defendant fails to appear at his trial knowing he has an obligation to appear. Blatz, 486 N.E.2d at 991; Bedgood v. State (1985), ... ...
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