McGary v. State, No. 1-1080A272

Docket NºNo. 1-1080A272
Citation421 N.E.2d 747
Case DateJune 17, 1981
CourtCourt of Appeals of Indiana

Page 747

421 N.E.2d 747
Larry Ray McGARY, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 1-1080A272.
Court of Appeals of Indiana, First District.
June 17, 1981.

Page 748

John M. Ross and J. Lynn Boese, Rees, Ross & Boese, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Fredrick N. Kopec, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Larry Ray McGary appeals his conviction, pursuant to trial by jury, of causing the death of another person by driving a motor vehicle while under the influence of intoxicating liquor. 1 He was sentenced to the Indiana Department of Correction for a term of one year. We affirm.

STATEMENT OF THE FACTS

The evidence most favorable to the State reveals that in the early morning hours of October 2, 1976, about 2:00 A.M., a collision between two vehicles occurred on Indiana State Road 9 approximately four miles north of Shelbyville. The vehicles involved were a Ford LTD automobile which was being driven north by Deborah Lightfoot and a Jeep which was registered in the name of McGary and had been traveling south on the highway. When neighbors and police officers arrived at the scene, Deborah Lightfoot was unconscious and seated in the driver's seat of her automobile. No one was in the Jeep, but McGary was lying in a ditch on the east side of the road about twenty-five feet south of the Jeep. The windshield from the Jeep was lying on the roadway between McGary and

Page 749

the vehicle. When McGary was picked up to be placed in the ambulance, the horn button from the Jeep steering wheel was found between his arm and his body.

Both vehicles were badly damaged, primarily to the left front and front. Both Lightfoot and McGary were injured and were taken to the W.S. Major Hospital in Shelbyville. Lightfoot died en route to the hospital.

Officers, ambulance personnel, hospital staff members, and the emergency room physician all noticed a strong odor of alcohol on McGary's breath. A blood sample was taken from McGary at approximately 4:30 A.M. Testing of this blood sample at the Indiana State Police laboratory indicated a .166% blood alcohol content. 2

McGary had been at the home of one McNierney earlier that night and had left there alone, driving the Jeep, about 10:30 P.M. on October 1st. He had consumed some beer at McNierney's and some earlier that day. McGary testified that he had no memory of the events after leaving McNierney's until sometime later when he was in the hospital.

ISSUES 3

1. Was McGary entitled to discharge under Ind.Rules of Procedure, Criminal Rule 4(C)?

2. Was the trial court's overruling of McGary's motion to suppress evidence of the blood alcohol test performed on the blood sample taken from him at the hospital reversible error?

3. Was the evidence sufficient to support the conviction?

DISCUSSION AND DECISION

Issue One

McGary contends he was entitled to discharge under C.R. 4(C). 4 We do not agree.

McGary was indicted on October 26, 1976, and was arrested pursuant to a warrant on October 28, 1976. He appeared in court and was let to bail on the same day. On November 12, 1976, he entered a plea of not guilty and filed a motion for change of venue from the county which was set for hearing on December 1, 1976. Later, on November 22, 1976, McGary filed a motion for change of judge which was granted and a panel named pursuant to Ind.Rules of Procedure, Criminal Rule 13. Both of these motions constituted delays chargeable to McGary. State ex rel. Garvin v. Dearborn C. C., (1972) 257 Ind. 631, 277 N.E.2d 370; State ex rel. Walker v. Ratliff, (1970) 253 Ind. 495, 255 N.E.2d 223. On December 1, 1976, the regular judge resumed jurisdiction because McGary had failed to strike from the panel and held a hearing on the motion for change of venue from the county. Ruling on the change of venue was taken under advisement. McGary orally moved for reconsideration of his motion for change of judge. At this point, the regular judge disqualified himself, a panel was named, and a special judge was selected. The special judge qualified and assumed jurisdiction on December 2, 1976. Thus, all the time from the filing of the motion for change of judge until the qualification of the special judge, a period of twenty (20) days, was a delay chargeable to McGary.

Page 750

On April 28, 1977, the court set a trial date of September 6, 1977. On August 24, 1977, McGary's counsel withdrew and new counsel appeared for McGary five (5) days later on August 29, 1977. 5 Also on August 29, 1977, McGary filed a motion to dismiss and a motion to suppress evidence. He filed a second motion to dismiss on September 2, 1977, and a second motion to suppress on September 23, 1977. The filing of these motions constituted delays chargeable to McGary. Little v. State, (1981) Ind., 415 N.E.2d 44; Battle v. State, (1981) Ind., 415 N.E.2d 39. The trial did not take place on September 6, 1977, because the special judge was involved in a trial in his own court and was unavailable. The court sua sponte made an entry to that effect. (See, Harris v. State, (1971) 256 Ind. 464, 269 N.E.2d 537.) Further, no hearing had yet been held on McGary's motions to dismiss and to suppress. An evidentiary hearing on the motion to suppress was held on September 23, 1977, and continued for further hearing on October 21, 1977. This hearing date was continued on motion of the State until November 17, 1977. On November 17, 1977, hearing on the motions was concluded and the case was set for trial on November 29, 1977. On November 22, 1977, the trial court granted the motion to suppress in part and denied the same in part, reserving further ruling until time of trial. As of the ruling of November 22, 1977, delay of eighty-one (81) days had been occasioned by the motions to dismiss and to suppress. Such delay is also chargeable to McGary. When his motion for discharge was filed on October 28, 1977, at least forty-five (45) days delay already had been caused by McGary's motions....

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8 practice notes
  • Knapp v. Holiday Inns, Inc., No. 84-34-II
    • United States
    • Court of Appeals of Tennessee
    • October 11, 1984
    ...v. Wheeler, 120 N.H. 496, 416 A.2d 1384, 1385-86 (1980); Dick v. Molitor, 305 Minn. 390, 234 N.W.2d 583, 585 (1975); McGary v. State, 421 N.E.2d 747, 751 (Ind.App.1981); and Tutt v. State, 128 Ga.App. 636, 197 S.E.2d 432, 433 (1973) (Eberhardt, J., concurring). But see Schwarzbach v. Dunn, ......
  • Hughes v. State, No. 10A01-8605-CR-116
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 1987
    ...obligation to object at the earliest opportunity. Little v. State (1981), 275 Ind. 78, 415 N.E.2d 44; McGary v. State (1981), Ind.App., 421 N.E.2d 747. Hughes's trial was scheduled on January 4; she lodged no objection in any form regarding the trial date until February 8, 1984, more than a......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...to suppress pended (October 29, 1979 until January 23, 1980) was a delay chargeable to Defendant. McGary v. State, (1981) Ind.App., 421 N.E.2d 747, 750. However, the pendency of such motion is not a circumstance from which we can conclude that Defendant did not really want a speedy In this ......
  • Taylor v. State, No. 4-583A134
    • United States
    • Indiana Court of Appeals of Indiana
    • June 21, 1984
    ...prescribed by statute must be made before that time period has expired or any objection is waived. McGary v. State, (1981) Ind.App., 421 N.E.2d 747. Taylor also maintains the trial court erred in refusing to suppress evidence obtained at the time of his arrest. He reasons that he was initia......
  • Request a trial to view additional results
8 cases
  • Knapp v. Holiday Inns, Inc., No. 84-34-II
    • United States
    • Court of Appeals of Tennessee
    • October 11, 1984
    ...v. Wheeler, 120 N.H. 496, 416 A.2d 1384, 1385-86 (1980); Dick v. Molitor, 305 Minn. 390, 234 N.W.2d 583, 585 (1975); McGary v. State, 421 N.E.2d 747, 751 (Ind.App.1981); and Tutt v. State, 128 Ga.App. 636, 197 S.E.2d 432, 433 (1973) (Eberhardt, J., concurring). But see Schwarzbach v. Dunn, ......
  • Hughes v. State, No. 10A01-8605-CR-116
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 1987
    ...obligation to object at the earliest opportunity. Little v. State (1981), 275 Ind. 78, 415 N.E.2d 44; McGary v. State (1981), Ind.App., 421 N.E.2d 747. Hughes's trial was scheduled on January 4; she lodged no objection in any form regarding the trial date until February 8, 1984, more than a......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...to suppress pended (October 29, 1979 until January 23, 1980) was a delay chargeable to Defendant. McGary v. State, (1981) Ind.App., 421 N.E.2d 747, 750. However, the pendency of such motion is not a circumstance from which we can conclude that Defendant did not really want a speedy In this ......
  • Taylor v. State, No. 4-583A134
    • United States
    • Indiana Court of Appeals of Indiana
    • June 21, 1984
    ...prescribed by statute must be made before that time period has expired or any objection is waived. McGary v. State, (1981) Ind.App., 421 N.E.2d 747. Taylor also maintains the trial court erred in refusing to suppress evidence obtained at the time of his arrest. He reasons that he was initia......
  • Request a trial to view additional results

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