Maxie v. State
| Decision Date | 26 August 1985 |
| Docket Number | No. 1283S465,1283S465 |
| Citation | 481 N.E.2d 1307 |
| Parties | Jerry MAXIE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Donald W. Pagos, Michigan City, for appellant.
Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from a conviction of robbery, a class B felony I.C. Sec. 35-42-5-1. The case was tried before a jury. Appellant received a seventeen year sentence.
He raises five issues on appeal: (1) whether the trial court erred in denying his motion to dismiss; (2) whether the trial court erred in permitting the jury to take notes during the trial; (3) whether the trial court erred in permitting the jury to take the written instructions into the jury room; (4) whether trial court erred in responding to a jury inquiry during deliberations with a written note informing the jury which instructions contained the answer to their question; and (5) whether he was denied a fair and impartial trial due to the State's alleged use of its peremptory challenges to systematically exclude blacks from the jury.
These are the facts from the record that tend to support the determination of guilt. Carl Bremer owned Carl's T.V. in Michigan City, Indiana. On December 17, 1981, at approximately 4:00 p.m., two men entered the store and asked Bremer if they could see some television sets. As Bremer showed them a new set, the taller of the two men drew a revolver and ordered Bremer into the bathroom. The other man tied Bremer's hands. The taller man then told Bremer, "it's a stick-up, and we want your money." The other man then took Bremer's wallet. The two men then left the bathroom; subsequently, Bremer heard the bell over the front door ring several times. Thereafter, Bremer managed to obtain a knife and liberate himself. He then called the police. A brief inventory of the merchandise revealed that several color television sets, a radio, a tape recorder, a watch and a microwave oven had been stolen.
At the time of the robbery, David Pagels observed from a window across the street two men making trips back and forth from the store to a dark blue Chevrolet Chevette.
On December 29, Bremer identified the taller of the two men in a photographic line-up. The suspect he identified was appellant.
Terry Lahale testified that he rented a dark blue Chevrolet Chevette to appellant on December 12, and that appellant returned the car on December 21.
Appellant was arrested in December 1981, in Lake County on an unrelated charge. On the same day as the arrest, LaPorte County officials filed a detainer against appellant for the offense arising from the incident at Bremer's store. Appellant was arrested for the instant charge on September 14, 1982, and on September 17, 1982, an Information for robbery was filed in LaPorte County. Appellant was transferred to LaPorte County, and on September 24, 1982, he appeared before the LaPorte Superior Court. Trial was set for January 31, 1983. An amended Information was filed on December 30, 1982. On the first day of trial, January 31, 1983, appellant filed a Motion to Dismiss which alleged a violation of Ind.R.Crim.P. 4(C). The trial court overruled the motion.
Ind.R.Crim.P. 4(C) is set forth here:
(C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged.
Appellant argues that he was not brought to trial within one year since LaPorte County filed a detainer on him in December 1981, and his trial was not until January 31, 1983. Consequently, he claims the trial court erred in denying his motion to dismiss because he was essentially arrested in December 1981.
This court has specifically held, however, that when a defendant is incarcerated in another county on unrelated charges, "arrest" for purposes of Ind.R.Crim.P. 4(A) and (C) does not occur until his return is ordered by the court wherein the second charges have been filed. State ex rel. Penn v. Criminal Court of Marion County (1979) Ind. , 389 N.E.2d 21; Napiwocki v. State (1971), 257 Ind. 32, 272 N.E.2d 865 (DeBruler, J., and Prentice, J., dissenting); see also, State ex rel. Johnson v. Kohlmeyer, (1973) 261 Ind. 244, 301 N.E.2d 518 (DeBruler, J., dissenting); State v. Laslie, (1978) Ind.App. , 381 N.E.2d 529; State v. Roberts, (1976) 171 Ind.App. , 538, 358 N.E.2d 181.
Landrum v. State (1981), Ind., 428 N.E.2d 1228, 1230; see also Hinds v. State (1984), Ind.App., 469 N.E.2d 31, 34.
For the purposes of appellant's argument, Landrum, supra is directly on point and stare decisis. Appellant asks us to modify our holding in Landrum on the basis of Nutt v. State (1983), Ind.App., 451 N.E.2d 342. In Nutt the Court of Appeals formulated a different definition of "arrest" for purposes of the credit time statute. This definition concerned sentencing and is inappropriate under the facts of the case at bar. Consequently, we are not persuaded to modify our holding in Landrum.
Appellant claims that the trial court erred in permitting the jury to take notes during the trial. While reading the preliminary instructions to the jury, the trial court informed the jurors that they could take notes during the trial, provided that they did not allow the notetaking to interfere with their concentration on the witnesses. Appellant objected at trial.
The rule in Indiana is set forth here:
Dudley v. State (1970), 255 Ind. 176, 263 N.E.2d 161, 164. The circumstances of this case do not show that the trial court's action was improper, nor do the circumstances indicate that the jurors' notetaking interfered with their concentration on the witnesses.
The trial court read the final instructions to the jury in open court before appellant and his counsel. Thereafter, the record is silent. According to appellant's affidavit filed in an effort to make an addition to the record, the jury was permitted, over his objection, to take the written instructions with them into the jury room before...
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...emphasis, or do not present a danger of speculation by the jury as to the relative importance of different instructions. Maxie v. State (1985), Ind., 481 N.E.2d 1307; Henning, The instructions in the instant case are devoid of any markings which may have given rise to speculation by the jur......
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