Morrison v. State

• Decision Date: 17 August 1989
• Docket Number: No. 03A04-8811-CR-390,03A04-8811-CR-390
• Parties: Allen MORRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 564

542 N.E.2d 564

Allen MORRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 03A04-8811-CR-390.

Court of Appeals of Indiana Fourth District.

Aug. 17, 1989.

Stephen W. Dillon, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

CHEZEM, Presiding Judge.

Case Summary

Defendant-Appellant, Morrison, appeals his conviction after trial by jury on eight counts of Child Molesting, a Class B felony, and one count of Child Molesting, a Class C felony. We affirm.

Issues

I. Whether Defendant was denied the right to a speedy trial pursuant to Indiana Rules of Criminal Procedure, Rule 4(C).

II. Whether the trial court order creating a panel of prospective special judges violated Indiana Rules of Trial Procedure, Rule 79(7), and whether Defendant subsequently acquiesced to the jurisdiction of the trial court.

III. Whether Defendant was denied a fair trial by the failure of the Bartholomew County Prosecutor's to turn over to Defendant, or reveal the existence of, polygraph examinations of the victims.

IV. Whether Defendant was denied effective assistance at trial by counsel's failure to properly investigate and counsel's failure to call two witnesses.

V. Whether the trial court erroneously denied Defendant's supplemental Motion to Correct Error, which was based upon the newly discovered evidence of an alleged admission by one of the victims that her story had been fabricated.

Facts

On April 25, 1986, Defendant-Appellant Morrison was charged with eight counts of Child Molesting, a Class B felony, and one count of Child Molesting, a Class C felony. On June 10, 1986, the State filed a motion requesting a trial date. On June 23, 1986, the trial court set this matter for trial by jury as a third setting on November 18, 1986, as a second setting on February 10, 1987, and as a first setting on April 6, 1987. The dates of all three settings passed without objection; the case was not tried on any of those dates.

On January 15, 1987, the newly elected Bartholomew Circuit Court Judge, the Honorable Suzanne Forster Trautman, disqualified herself and certified the matter to the Supreme Court, pursuant to Indiana Rules of Trial Procedure Rule 79, for appointment of a special judge. On February 20, 1987, the Supreme Court appointed the Honorable James W. Long as special judge. Judge Long assumed jurisdiction of the case on March 2, 1987.

On March 6, 1987, the State filed a second motion to set the matter for trial. The trial court set the matter for trial on June 9, 1987. Defendant did not object to this trial setting. Due to congestion of the special judge's calendar, on May 28, 1987, Judge Long sua sponte drew up a panel of three judges and directed the parties to strike by June 4, 1987, to select a new judge.

On June 4, 1987, the State struck; the Defendant did not. On July 27, 1987, the State filed a motion to compel Defendant's counsel to strike from the panel. The motion apparently was not ruled upon and Defendant struck on July 30, 1987. On July 31, 1987, the trial court entered an order, naming the Honorable Charles D. O'Connor as special judge.

On September 3, 1987, the trial court entered an order which noted Judge O'Connor had declined the appointment, and another panel of judges was created. The State struck from the panel on September 10, 1987. On the same date, the State filed a second motion to compel Defendant to strike. Defendant struck from the panel on October 1, 1987. On October 2, 1987, the trial court entered an order naming the Honorable Frank Guthrie as special judge. On October 7, 1987, Judge Guthrie assumed jurisdiction.

On October 14, 1987, the State filed a third motion requesting that the matter be set for trial. The trial court set this cause for trial by jury on February 15, 1988. Defendant filed a motion for discharge pursuant to Criminal Rule 4(C) on January 14, 1988. A hearing on the motion was held on February 5, 1988. The motion was taken under advisement, and on February 8, 1988, the motion was denied.

Defendant was tried by jury on February 15, 1988 and was found guilty on all counts. On April 18, 1988, the trial court sentenced Morrison to eight (8) ten (10) year sentences for the eight Class B felony Child Molesting counts and one (1) five (5) year sentence for the Class C felony Child Molesting count. Counts III, IV and VII (Child Molesting as a Class B felony) were to run consecutively with all others to run concurrently for a total of twenty-five (25) years.

Discussion and Decision

I

Defendant argues that he was denied the right to a speedy trial guaranteed to him by Criminal Rule 4(C). Six hundred sixty-one (661) days passed between the date the charges were filed and the date Defendant was actually tried. Defendant asserts that none of the delays were attributable to him; therefore, he should be discharged. Indiana Rules of Criminal Procedure Rule 4(C), at the time charges were filed against Defendant, read as follows:

(C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged. ¹

The State argues that although six hundred sixty-one (661) days had passed, only three hundred fourteen (314) days were attributable to the State; the rest were attributable to Defendant or "calendar congestion" and, thus, Defendant was not entitled to discharge under Criminal Rule 4(C).

First, the State argues that Defendant should be charged with the time between the date originally scheduled for the omnibus hearing and the date on which it was actually heard, since the delay was caused by Defendant's motion to continue the hearing. Defendant argues that the delay of the omnibus hearing does not constitute a delay of Defendant's trial. The delay in the omnibus hearing resulted in a delay in the proceedings as a whole and, more specifically, a delay in a trial being set. The trial date and other pretrial matters, were set at the omnibus hearing. Trial courts operate on a calendar. Simple logic dictates that the earlier one schedules a trial, the earlier the trial will be held. We agree with the State's contention that this thirty-nine (39) day period was chargeable to Defendant. Thus, the number of days is reduced to six hundred twenty-two (622).

Second, the State argues it should not be charged the period of time between January 15, 1987, the date Judge Trautman disqualified herself, and March 2, 1987, the date Judge Long qualified as special judge in this cause. State reasons that the thirty-six (36) days between the time Judge Trautman disqualified herself and the appointment of Judge Long by the Supreme Court was not an unreasonable length of time; also, the State lacks any way to force the Supreme Court to act more expeditiously. The period between the appointment and the assumption of jurisdiction by Judge Long was ten (10) calendar days, of which six were business days, after the appointment. The State reasons that this period of time was not an unreasonable one for notice to the judge of the appointment, for the judge to contemplate whether there was any reason that would prevent his acceptance, and for the necessary paperwork to be prepared to accept the appointment.

We agree with the State that this period of time is not unreasonable. The State's argument, that it should not be charged with the time as a result, is persuasive. However, the State supplies us with no authority which demonstrates that "reasonableness" may override the provisions of Criminal Rule 4(C). The rule provides only two (2) occurrences which toll its operation: 1) defendant's delay, by his motion to continue or other actions which cause delay; or 2) congestion of the trial court's calendar.

We note the case of Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105 ², in which our state supreme court determined that exigent circumstances may warrant a reasonable delay beyond the limitations established in the rule. In that case, the court held that unavailability of essential personnel tolls the operation of the rule. Here, a judge was "unavailable" since none had assumed jurisdiction after the disqualification of Judge Trautman. Having already determined that the time was reasonable, we hold that Loyd applies here and the forty-six (46) days between the disqualification, and the assumption of jurisdiction by Judge Long was attributable to lack of essential court personnel. Thus, Criminal Rule 4(C) was tolled for forty-six (46) days and the number of days is reduced to five hundred seventy-six (576) days.

Third, the State argues that the period of time after May 28, 1987 should not be attributable to the State, since on that date Judge Long found that the court calendar was congested. We disagree. While calendar congestion is an occurrence which will toll the application of Criminal Rule 4(C), the remedy is a continuance. The amended rule further provides that the trial date be continued to within a reasonable time. Indiana Rules of Criminal Procedure Rule 4(C). Here, the trial court neither set a new trial date nor created a mechanism which would insure Defendant was tried within a reasonable time. While that portion of Rule 4(C) was not in effect at the time Defendant was charged, the...