McGowan v. State, No. 55S04-9209-CR-728

Docket NºNo. 55S04-9209-CR-728
Citation599 N.E.2d 589
Case DateSeptember 23, 1992
CourtSupreme Court of Indiana

Page 589

599 N.E.2d 589
Randolph McGOWAN, Appellant,
v.
STATE of Indiana, Appellee.
No. 55S04-9209-CR-728.
Supreme Court of Indiana.
Sept. 23, 1992.

Page 591

Patrick M. Schrems, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

ON CRIMINAL PETITION TO TRANSFER

GIVAN, Justice.

In an opinion published at 592 N.E.2d 1243, the Court of Appeals reversed appellant's conviction of two counts of Defrauding a Financial Institution. The Court of Appeals' reversal was based upon the application of Ind.Crim. Rule 4(B), which concerns a motion for early trial. When such a motion is filed, the court is required to bring the defendant to trial within seventy calendar days unless a delay is caused by appellant's own motion or by his own act.

In a dissenting opinion by Judge Chezem, she opines that it should be required that any motion under the rule should be made in writing. Her observation is that the press of business in the trial courts is so great that trial judges should not be required to keep track of oral motions. Although we agree with Judge Chezem's observation in this regard, we are nevertheless bound by the trial rules presently in place.

Although Crim.R. 4 does not specify that the motion be in writing, Ind. Trial Rule 7(B) provides:

"Unless made during a hearing, or trial or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought. The requirement of notice is satisfied by service of the motion."

In the case at bar, appellant's oral motion was made during his arraignment on October 9, 1990. Thus, under T.R. 7(B), the motion could have been made orally except for the fact the magistrate who was arraigning appellant instructed him that he must make his motion in writing. Thus, appellant's situation came under that portion of the rule which says "or otherwise ordered by the court."

It is obvious from the record in this case that the statement by the magistrate was understood by appellant and his counsel to require a written motion, which they in fact filed on October 30, 1990. This also brings into play our ruling in Minneman v. State (1982), Ind., 441 N.E.2d 673, cert. denied, 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307, that when a defendant files a motion for early trial then files a subsequent motion, the time begins to run from the subsequent motion. Thus by both methods the time from which the seventy days should be calculated is October 30, 1990 when appellant filed his written request for speedy trial. The seventy day period, assuming no motions or interference by appellant, would have expired January 8, 1991, two days before appellant was tried on January 10, 1991. Appellant's motion

Page 592

for discharge, therefore, was filed prematurely, on December 23, 1990, and the trial court was correct in denying it. See State v. Beckwith (1947), 225 Ind. 288, 74 N.E.2d 742.

Additionally, as recognized by the majority opinion and by the dissenting opinion, appellant so conducted himself with his original counsel that counsel asked permission to withdraw from the case on December 10, 1990. His motion was granted and new counsel was appointed on that day. Following the appointment of new counsel, the court held an in camera hearing with the new counsel and the prosecuting attorney. What was said between counsel and the bench is not reported in this record.

However, following the conference, the trial court made an entry resetting the trial for January 17, 1991. Appellant personally objected to setting a further date and insisted that his acquiring new counsel in no way waived his right to a speedy trial. There is nothing in the record to indicate his newly-appointed counsel joined in this objection. As observed by Judge Chezem in her dissenting opinion, it was within the trial judge's prerogative to view the complexity of the case and to decide that seven days was not sufficient time for new counsel to adequately prepare. Thus, the time was extended.

We further note that although the trial judge originally set January 17 for the new trial date, appellant in fact was tried one week earlier on January 10, 1991. Given the state of this record we cannot say the trial court abused its discretion in resetting the trial date after appointment of new counsel, the necessity of which was brought about solely by the conduct of appellant. We therefore hold the Court of Appeals erred in reversing appellant's conviction on this ground.

Appellant next claims the trial court erred when it allowed evidence of an impermissibly suggestive lineup. Appellant contends that a photographic array was shown to bank employees which did not contain his photograph and that no identification was made from that first array. A second photographic array was compiled, which included appellant's photograph from which he was identified. Appellant claims, however, that although Detective Fine testified none of the photographs from the first array were included in the second array, other witnesses testified that some of the photographs from the first array were included in the second.

Appellant also contends that in addition other photographs contained in the second array were much younger and the facial characteristics were not similar to his. This Court has held that where the individuals pictured in an array vary in appearance, the array is neither unusual nor impermissibly suggestive. Wolfe v. State (1990), Ind., 562 N.E.2d 414; Neal v. State (1988), Ind., 522 N.E.2d 912; Fraylon v. State (1989), Ind., 542 N.E.2d 559. Although the persons pictured in the...

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15 practice notes
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...faith on the part of the police, the failure to preserve evidence does not constitute a denial of due process of law. McGowan v. State, 599 N.E.2d 589, 594 (Ind.1992). Indeed, numerous Indiana cases have applied the bad faith requirement in cases involving the negligent destruction of evide......
  • Craig v. State, No. 33A01-9208-CR-257
    • United States
    • Indiana Court of Appeals of Indiana
    • May 24, 1993
    ...have generally applied the Williams standard of review and required such assurance. Page 504 See e.g., McGowan v. State (1992), Ind., 599 N.E.2d 589; Holliday v. State (1992), Ind.App., 601 N.E.2d 385, trans. denied; Goldsworthy v. State (1991), Ind.App., 582 N.E.2d 921; Newbauer v. State (......
  • Wade v. State, No. 49A02-9806-CR-538.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1999
    ...individuals pictured in a photo array vary in appearance, the array is neither unusual nor impermissibly suggestive. McGowan v. State, 599 N.E.2d 589, 592 (Ind.1992); see also Wolfe v. State, 562 N.E.2d 414 (Ind.1990); Neal v. State, 522 N.E.2d 912 (Ind.1988); and Fraylon v. State, 542 N.E.......
  • Jewell v. State, No. 51A01-9506-CR-192
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 1996
    ...the part of the police in evaluating whether the failure to preserve evidence constitutes a denial of due process. Id.; McGowan v. State, 599 N.E.2d 589, 594 (Ind.1992). Jewell argues that, even if the refusal of his instructions did not violate his federal right to due process, we should f......
  • Request a trial to view additional results
15 cases
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...faith on the part of the police, the failure to preserve evidence does not constitute a denial of due process of law. McGowan v. State, 599 N.E.2d 589, 594 (Ind.1992). Indeed, numerous Indiana cases have applied the bad faith requirement in cases involving the negligent destruction of evide......
  • Craig v. State, No. 33A01-9208-CR-257
    • United States
    • Indiana Court of Appeals of Indiana
    • May 24, 1993
    ...have generally applied the Williams standard of review and required such assurance. Page 504 See e.g., McGowan v. State (1992), Ind., 599 N.E.2d 589; Holliday v. State (1992), Ind.App., 601 N.E.2d 385, trans. denied; Goldsworthy v. State (1991), Ind.App., 582 N.E.2d 921; Newbauer v. State (......
  • Wade v. State, No. 49A02-9806-CR-538.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1999
    ...individuals pictured in a photo array vary in appearance, the array is neither unusual nor impermissibly suggestive. McGowan v. State, 599 N.E.2d 589, 592 (Ind.1992); see also Wolfe v. State, 562 N.E.2d 414 (Ind.1990); Neal v. State, 522 N.E.2d 912 (Ind.1988); and Fraylon v. State, 542 N.E.......
  • Jewell v. State, No. 51A01-9506-CR-192
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 1996
    ...the part of the police in evaluating whether the failure to preserve evidence constitutes a denial of due process. Id.; McGowan v. State, 599 N.E.2d 589, 594 (Ind.1992). Jewell argues that, even if the refusal of his instructions did not violate his federal right to due process, we should f......
  • Request a trial to view additional results

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