Mayes v. State, No. 2--1172A110

• Docket Nº: No. 2--1172A110
• Citation: 162 Ind.App. 186, 318 N.E.2d 811, 44 Ind.Dec. 496
• Case Date: November 13, 1974
• Court: Court of Appeals of Indiana

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318 N.E.2d 811 162 Ind.App. 186 Jackie D. MAYES, Appellant,
v.
STATE of Indiana, Appellee. No. 2--1172A110. Court of Appeals of Indiana, Second District. Nov. 13, 1974.
Rehearing Denied Dec. 10, 1974.
Transfer Denied Jan. 24, 1975.

[162 Ind.App. 188]

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David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Mayes appeals from a conviction of heroin possession. We affirm the judgment.

Mayes presents the following contentions for our determination:

1. The trial court lacked jurisdiction in that Mayes was not prosecuted, as required by Indiana Rules of Procedure, CR. 4(C), within one year after the filing of the affidavit charging him.

2. The trial court erred in admitting hearsay testimony.

[162 Ind.App. 189] 3. A witness was permitted to give expert testimony without proper foundation as to his qualifications.

4. Chain of custody of the drug admitted into evidence was not established.

5. The trial court erred in allowing the State to impeach Mayes' credibility by reference to a prior conviction for assault and battery with intent to commit robbery.

6. The trial court erred in not ordering a retraction and not instructing the jury to disregard comments made by the prosecutor during final argument to the effect that Mayes was 'caught in two specific lies.'

Mayes additionally argues that the absence of a file mark upon the pre-sentence

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investigation report creates an inference that the report was not considered by the court in sentencing Mayes. This assertion was not contained in Mayes' original Motion to Correct Errors nor in the amended Motion to Correct Errors. It is therefore waived. We note however, the following entry of record which lays to rest such contention:

'Court having examined the Pre-Sentence Investigation Report heretofore filed by Probation Department * * *.'

I

FAILURE TO TIMELY PRESENT SPEEDY TRIAL CONTENTION UNDER CR. 4(C) CONSTITUTES WAIVER OF THE DISCHARGE PROVISIONS OF THE RULE AND JURISDICTION OF THE COURT IS NOT AFFECTED

Mayes contends that under Indiana Rules of Procedure CR. 4(C), (as it existed at times here pertinent) the trial court lost jurisdiction of the matter because Mayes was charged by affidavit on September 5, 1969, was not bound over from the Marion County Municipal Court to the Criminal Court until May 25, 1972 and was not tried until July 17, 1972.

In Utterback v. State (1974), Ind., 310 N.E.2d 552, our Supreme Court construed the discharge provision of Rule CR. 4(B) and held that a defendant must object prior to expiration of the time provided therein if he is to obtain discharge[162 Ind.App. 190] for failure of the State to grant speedy trial. Rule CR. 4(C) was, at the time here in question, similar in its seemingly mandatory discharge provision. In the case before us, Mayes did not raise the question until filing of his Motion for Discharge some five months after trial and three months after his original Motion to Correct Error had been overruled. The following reasoning of the Utterback decision is binding upon this court:

'In Bryant v. State (1973), Ind., 301 N.E.2d 179 and in Layton v. State (1973), Ind., 301 N.E.2d 633, we held that under Criminal Rule 4 it was incumbent upon the defendant to protest, at his first opportunity, if his trial date was set for a date subsequent to that permitted under the rule and that his failure to do so must be regarded as acquiescence and a waiver.'

'The material difference between (Rules CR. 4(A) and 4(B)) is that under the one the time starts running automatically, while under the other the defendant must trigger it with a motion. In either event, when a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be presumed to be aware of it, it is his obligation to call it to the court's attention in time to permit a correction. If he fails to do so, he should not be heard to complain. The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the means that we have designed for their protection.' 310 N.E.2d 553, 554.

Mayes, however, has not framed his contention strictly in terms of the discharge provision of Rule CR. 4, but rather upon the premise that the failure to prosecute within the time limits set forth therein, served to divest the trial court of jurisdiction. We reject this 'jurisdictional' argument in the light of In re Brooks (1966), 247 Ind. 249, 214 N.E.2d 653 and Randolph v. State (1954), 234 Ind. 57, 122 N.E.2d 860, cert. denied, 350 U.S. 889, 76 S.Ct. 145, 100 L.Ed. 783 (1955), which specifically held, in [162 Ind.App. 191] construing Ind.Ann.Stat. §§ 9--1402 to 9--1404 (the predecessors of Rule CR. 4), that a failure to make a timely motion for discharge prior to trial constitutes

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a waiver of the right to discharge and that under such circumstances, the jurisdiction of the criminal court is not affected. II

INCULPATORY HEARSAY TESTIMONY IMPROPERLY ADMITTED WAS RENDERED HARMLESS BY INDEPENDENT EVIDENCE OF GUILT

The appellant Mayes contends that the trial court erred in admitting hearsay testimony from arresting officer Mukes. The testimony and the objection thereto was as follows:

'Q. And why were you going to that location?

A. We had received information from the Federal narcotic officer that narcotic drugs were being sold--

Mr. Pehler: Now Your Honor, I am going to object to any information that he received second handedly unless they want to bring that agent in so we can have the opportunity to cross-examine him.

Court: Overrule the objection.

A. We received information from a narcotic officer; we had met the federal narcotic officer. He gave us information that he observed narcotic sales in the 100 block of West 30th Street, that would be the 100 block of West 30th Street, the first alley that runs north in the rear of a restaurant that--and he described the clothing that the individual that he had observed selling the narcotic drugs was wearing.

Mr. Pehler: Your Honor, at this time I am going to have to interrupt the witness--excuse me sir--and interpose another objection in that it is in the continuing nature of hearsay testimony which we have no opportunity to cross-examine on his informing this jury of information which he has received. I don't know what it is going to be concerning or who it is going to be concerning at this time but if it relates in any capacity to this trial then--of this Defendant, then it would be extremely prejudicial as being hearsay evidence and would be inadmissible and we would move to strike the [162 Ind.App. 192] testimony which he has already given and ask the jury to disregard it.

Court: At this point we are going to overrule your objection and deny your motion to strike up to this time.'

The prosecutor next asked Officer Mukes what he did after having received that information. The officer testified that he and the officers accompanying him proceeded to 30th and Illinois Streets. The events which transpired at that location as testified to by Officer Mukes and one of his partners were as follows: When the officers arrived at the location (an alley immediately West of 30th and Illinois Streets in Indianapolis), Mukes saw Mayes standing with two or three other persons. When the officers started to exit their car, Mayes 'turned and started to flee.' Mayes threw a plastic vial to the ground. The vial held capsules later found to contain heroin.

Despite the arguably inoffensive question which prompted the testimony complained of, Mayes, relying upon Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759; Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814, and Bryant v. State (1933), 205 Ind. 372, 186 N.E. 322, contends that since probable cause for his arrest was not in issue, the evidence was clearly offered to show the truth of the matters asserted therein, i.e., that he illegally possessed a narcotic drug. Contrary wise, the State looks to the question asked and relying exclusively upon Boles v. State (1973), Ind.,

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291 N.E.2d 357, argues that the testimony is not hearsay in that it merely explained the reason why the officer had proceeded to the location where Mayes was arrested.

While the prosecutor's question here is much the same as that asked in the Boles case, supra, ¹ the answer is not nearly so innocuous as in that case but neither is it so directly or personally implicative as the testimony considered in the Harvey, Bryant, or Glover cases, supra. In Boles, a burglary case, the witness stated that some boys told him 'somebody [162 Ind.App. 193] was breaking in.' The defendant there was not connected by the hearsay statement with the 'breaking in'. In the Bryant case, supra, the defendant was convicted of illegal transportation of intoxicating liquor and the arresting officer testified that he had been informed that the defendant was a bootlegger. In Glover, supra, the officer testified 'in substance' that he had been informed that 'the defendant was guilty.' Similarly in Harvey v. State, supra, the police officer's testimony concerned an extra-judicial statement made to him by a third party. The third party's statement concerned a meeting at which he, the defendant, and others were present and during which meeting the defendant made an inculpatory remark. See also, Olson v. State (1974), Ind., 315 N.E.2d 697.

By implication, the State would have us classify testimony as hearsay or not according to the question which elicits that testimony. To be sure, in many if not most cases, the intended purpose of the evidence may be divined from the question that is...