Miller v. State, No. 278S30

Docket NºNo. 278S30
Citation267 Ind. 635, 372 N.E.2d 1168
Case DateFebruary 23, 1978
CourtSupreme Court of Indiana

Page 1168

372 N.E.2d 1168
267 Ind. 635
Raymond K. MILLER, Appellant,
v.
STATE of Indiana, Appellee.
No. 278S30.
Supreme Court of Indiana.
Feb. 23, 1978.

[267 Ind. 637]

Page 1169

Michael T. Conway, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

Page 1170

ON PETITION TO TRANSFER

PIVARNIK, Justice.

After a conviction by a jury on June 17, 1975, in the Marion Criminal Court for robbery, appellant [267 Ind. 638] was sentenced to ten years imprisonment. This case is before us on transfer from the Indiana Court of Appeals, which reversed the conviction and decided only one of the issues presented. See issue V infra.

The record shows that on August 5, 1974, at approximately six in the evening, Allen Snyder parked his car in a downtown Indianapolis parking lot. As Snyder was leaving his car, another car driven by appellant Miller parked next to Snyder's car and Michael Dennis got out of the passenger side of that car and approached Snyder. Appellant was halfway out of the car and pointing a gun at Snyder while Dennis struck Snyder breaking his glasses and knocking him down. Dennis then removed $878 from Snyder's wallet, and Dennis and appellant Miller fled from the scene in the car.

Appellant assigns five errors in the proceedings of his trial below: (1) that the court erred by failing to grant appellant's motion for continuance; (2) that the court erred by failing to grant appellant's motion for judgment of acquittal at the conclusion of the state's evidence; (3) that the court erred by failing to instruct the jury as to any lesser included offenses; (4) that the verdict was not supported by sufficient evidence, and; (5) that the court erred by permitting the alternate juror to be in the presence of the jury during deliberation.

I.

Appellant Miller contends that the trial court erred in his failure to grant appellant's motion for continuance. The relevant facts pertaining to this assignment of error are as follows. Appellant Miller was arrested on August 9, 1974. After a succession of attorneys representing Miller, attorney Levy entered his appearance on Miller's behalf on April 28, 1975, and immediately requested and was granted a continuance. The trial date was reset to June 17, 1975. On June 13, 1975, another continuance was requested. In the motion for continuance, appellant stated the reasons necessitating a [267 Ind. 639] continuance were that: (1) during a conversation with Miller on June 13, 1975, Miller suggested a significant provable alibi for the first time, and; (2) insufficient time remained before trial to investigate and confirm the alibi. The court overruled the motion for continuance and the cause was tried on June 17, 1975.

Appellant recognizes that a ruling on a motion for continuance is generally within the discretion of the trial court and will not be disturbed unless an abuse of discretion is shown. However, appellant contends that his motion for continuance met the requirements of Ind.R.Tr.P. 53.4 and Ind.Code § 35-1-26-1 (Burns 1975) and that it stated significant material evidence which needed additional time to be investigated. It is argued that denial of this motion was an abuse of the trial court's discretion. Appellant further argues that the insufficient time for preparation of the defense denied the accused his constitutional right to competent and adequate counsel thereby denying him due process of law.

The right to counsel is fundamental to the American system of justice. This right necessarily embodies the corollary right to effective counsel. To be effective, counsel must be given sufficient opportunity to adequately prepare his case. Hartman v. State, (1973) Ind.App., 292 N.E.2d 293; Lloyd v. State, (1960) 241 Ind. 192, 170 N.E.2d 904. However, granting continuances in order to allow more time for preparation is generally not favored in criminal cases without a showing of good cause and will only be granted in the furtherance of justice. Carlin v. State, (1970) 254 Ind. 332, 259 N.E.2d 870; Calvert v. State,...

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47 practice notes
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...without a showing of good cause and will only be granted in the furtherance of justice. Miller v. State (1978), 267 Ind., 635, 638, 372 N.E.2d 1168, 1170; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870, 872. Whether good cause has been shown rests within the sound discretion of t......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...v. State, (1978) Ind., 378 N.E.2d 639, 641; Simpson v. State, (1978) Ind., 381 N.E.2d 1229, 1233. See Miller v. State, (1978) Ind., 372 N.E.2d 1168, 1170-71. See also Mitchell v. State, (1979) Ind., 398 N.E.2d 1254, 1256-57. Appellant correctly asserts that a criminal defendant generally ha......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...defendant's motion to correct errors. Defendant has, accordingly, waived this issue and we will not consider it. Miller v. State, (1978) 267 Ind. 635, 641, 372 N.E.2d 1168, 1171; Murphy v. State, (1978) 267 Ind. 184, 187, 369 N.E.2d 411, 413; Ind.R.App.P. 8.3(A) (7). Defendant further alleg......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...has waived any error by the introduction of evidence in his defense after the trial court's adverse ruling. Miller v. State (1978) Ind., 372 N.E.2d 1168; Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Blair v. State (1977), Ind.App., 364 N.E.2d Snyder further contends that the trial ......
  • Request a trial to view additional results
47 cases
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 1989
    ...without a showing of good cause and will only be granted in the furtherance of justice. Miller v. State (1978), 267 Ind., 635, 638, 372 N.E.2d 1168, 1170; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870, 872. Whether good cause has been shown rests within the sound discretion of t......
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...v. State, (1978) Ind., 378 N.E.2d 639, 641; Simpson v. State, (1978) Ind., 381 N.E.2d 1229, 1233. See Miller v. State, (1978) Ind., 372 N.E.2d 1168, 1170-71. See also Mitchell v. State, (1979) Ind., 398 N.E.2d 1254, 1256-57. Appellant correctly asserts that a criminal defendant generally ha......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...defendant's motion to correct errors. Defendant has, accordingly, waived this issue and we will not consider it. Miller v. State, (1978) 267 Ind. 635, 641, 372 N.E.2d 1168, 1171; Murphy v. State, (1978) 267 Ind. 184, 187, 369 N.E.2d 411, 413; Ind.R.App.P. 8.3(A) (7). Defendant further alleg......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...has waived any error by the introduction of evidence in his defense after the trial court's adverse ruling. Miller v. State (1978) Ind., 372 N.E.2d 1168; Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Blair v. State (1977), Ind.App., 364 N.E.2d Snyder further contends that the trial ......
  • Request a trial to view additional results

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