Minton v. State, No. 577S340

Docket NºNo. 577S340
Citation269 Ind. 39, 378 N.E.2d 639
Case DateJuly 24, 1978

Page 639

378 N.E.2d 639
269 Ind. 39
Frank Cedric MINTON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 577S340.
Supreme Court of Indiana.
July 24, 1978.

[269 Ind. 40]

Page 640

Duge Butler, Jr., Butler, Brown, Hahn & Little, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with and convicted of two counts of commission of a felony while armed, to-wit: robbery, Ind.Code § 35-12-1-1 (Burns 1975) and commission of a felony while armed, to-wit: rape, Ind.Code § 35-12-1-1 (Burns 1975). He was sentenced to ten (10) years imprisonment on each of the armed robbery counts and to twenty (20) years for armed rape. On appeal he presents the following issues:

(1) Whether the trial court erred in denying the defendant's motion for a continuance.

(2) Whether the defendant was denied a fair trial by the alleged withholding of exculpatory information by the State.

[269 Ind. 41] (3) Whether the trial court erred in admitting State's Exhibit No. 4, a knife, into evidence.

(4) Whether the trial court erred in admitting State's Exhibit No. 25, a photograph of an automobile, into evidence.

(5) Whether the defendant was denied a fair trial due to the presence of the alternate juror in the jury room during deliberations.

(6) Whether the trial court erred in refusing to instruct the jury on lesser included offenses.

ISSUE I

On November 12, 1976, public defender Jack Commons was appointed to represent the defendant. The defendant had previously been represented by three different attorneys during the two months prior to Mr. Commons' appointment. Due to congestion in the court calendar, on November 16, 1976, the cause was continued until December

Page 641

3, 1976. On November 18, 1976, defense counsel filed a motion for continuance stating that he had not been notified of his appointment until November 15, and that he required more than two weeks to prepare for the trial due to the complexity of the issues involved in the case. There is no indication in the record that this motion was ruled upon by the court. The defendant was tried by a jury on December 3, 1976, as scheduled.

On appeal, the defendant argues that the trial court erred in denying his motion for a continuance. The granting of a motion for a continuance generally lies within the sound discretion of the trial court. His determination will be reversed only upon a showing of clear error. White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84; Blevins v. State, (1973) 259 Ind. 618, 291 N.E.2d 84. The defendant has made no showing of clear error, and he has presented no evidence indicating anything specific which counsel would have done had he been given more time. The record indicates that defense counsel had three weeks in [269 Ind. 42] which to prepare the case, and that he had the benefit of work done by the defendant's previous attorneys. The defendant had the burden of showing that he was harmed by the court's ruling, King v. State, (1973) 260 Ind. 422, 296 N.E.2d 113; Napier v. State, (1971) 255 Ind. 638, 266 N.E.2d 199, and in the instant case, he has failed to meet that burden.

In addition, there appears to have been no ruling made on the defendant's motion by the trial court. In such an instance it cannot be assumed that the motion was denied, and by proceeding without a ruling and without protest, the defendant has waived any alleged error. Chustak, et al. v. NIPSCO, (1972) 259 Ind. 390, 288 N.E.2d 149.

ISSUE II

On October 14, 1976, one of the defendant's previous attorneys filed a motion for discovery which included the following request:

"5. Furnish defendant's attorney with any information or evidence tending to be favorable to the defendant or tending to lead to the discovery of favorable or exculpatory information or evidence."

In his brief the defendant argues that the State withheld certain exculpatory evidence which should have been made available to the defendant prior to trial. The evidence consisted of an identification of an accomplice made by one of the State's witnesses, Delbert Rhodes. The identification was made after the witness had earlier...

To continue reading

Request your trial
41 practice notes
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...[274 Ind. 8] to the trial court's discretion. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324, 1326; Minton 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. Stat......
  • Jones v. State, No. 3-1180A336
    • United States
    • Indiana Supreme Court of Indiana
    • August 19, 1982
    ...usage in our courts. This Court, for instance, employed it in Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639; Lawrence v. State, supra, Harris v. State, (1977) 266 Ind. 661, 366 N.E.2d 186; Hester v. State, (1974) 262 Ind. 284, 315 N.E......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...if it has a tendency to prove or disprove a material fact. Johnson v. State, (1980) Ind., 400 N.E.2d 132; Minton v. State, (1978) Ind., 378 N.E.2d 639. We have previously held that any evidence that connects the defendant with the crime is admissible. Hill v. State, (1979) Ind., 394 N.E.2d ......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...will be reversed only upon a showing of clear error. Whitacre v. State, (1980) Ind., 412 N.E.2d 1202; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639; White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84. In this case, defendant did have one expert witness who testified as to the effects ......
  • Request a trial to view additional results
41 cases
  • Drollinger v. State, No. 778S146
    • United States
    • Indiana Supreme Court of Indiana
    • August 26, 1980
    ...[274 Ind. 8] to the trial court's discretion. Hemphill v. State, (1979) Ind., 387 N.E.2d 1324, 1326; Minton 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. Stat......
  • Jones v. State, No. 3-1180A336
    • United States
    • Indiana Supreme Court of Indiana
    • August 19, 1982
    ...usage in our courts. This Court, for instance, employed it in Goodpaster v. State, (1980) Ind., 402 N.E.2d 1239; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639; Lawrence v. State, supra, Harris v. State, (1977) 266 Ind. 661, 366 N.E.2d 186; Hester v. State, (1974) 262 Ind. 284, 315 N.E......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...if it has a tendency to prove or disprove a material fact. Johnson v. State, (1980) Ind., 400 N.E.2d 132; Minton v. State, (1978) Ind., 378 N.E.2d 639. We have previously held that any evidence that connects the defendant with the crime is admissible. Hill v. State, (1979) Ind., 394 N.E.2d ......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...will be reversed only upon a showing of clear error. Whitacre v. State, (1980) Ind., 412 N.E.2d 1202; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639; White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84. In this case, defendant did have one expert witness who testified as to the effects ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT