Morrison v. State, 03S04-9006-CR-382

• Decision Date: 05 June 1990
• Docket Number: No. 03S04-9006-CR-382,03S04-9006-CR-382
• Citation: 555 N.E.2d 458
• Parties: Allen MORRISON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 458

555 N.E.2d 458

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

No. 03S04-9006-CR-382.

Supreme Court of Indiana.

June 5, 1990.

Stephen W. Dillon, Indianapolis, for appellant.

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

DICKSON, Justice.

The Court of Appeals upheld the defendant's conviction and his resulting twenty-five year sentence. Morrison v. State (1989), Ind.App., 542 N.E.2d 564. The defendant raises several issues concerning his motion for discharge under Ind.Crim.Rule 4(C). The following chronology sets out the significant dates and actions as well as identifying the delays attributed to the defendant by the Court of Appeals.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Trial occurred 661 days after the defendant was charged and arrested. The Court of Appeals aggregated the delays it attributed to the defendant (without allowing for overlapping delays) to be 394 days, leaving 267 days which the Court found to be within the requirement of Crim.R. 4(C) that the defendant not be held for more than 365 days in the aggregate.

At the time the defendant was charged, Crim.R. 4(C) provided:

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 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.

The Court of Appeals attributed the first delay, shown at bracket A above, to the defendant because his motion to continue the omnibus hearing delayed the setting of the trial date and hence the ultimate trial date. This comports with Justice DeBruler's dissent in State ex rel. O'Donnell v. Cass Superior Court (1984), Ind., 468 N.E.2d 209, 211. The defendant correctly now claims that the treatment of this delay contravenes State ex rel. O'Donnell. However, in his motion for discharge and at its hearing, the defendant conceded the 39-day period. The period is thus properly attributed to the defendant. At this stage of the proceedings, the State was required to bring the defendant to trial by June 3, 1987.

The Court of Appeals attributed delay B to the defendant because the record is "devoid of any continuance by the court or parties" and objections, and thus the defendant's failure to provide an adequate record constituted a waiver. The defendant claims that presuming his waiver from the silent record violates the general rule that the State has the burden of bringing a defendant to trial within the one-year period. Huffman v. State (1987), Ind., 502 N.E.2d 906. In State ex rel. Henson v. Washington Circuit Court (1987), Ind., 514 N.E.2d 838, we refused to hold a defendant accountable for a missed trial date for which there was no docket sheet entry of continuance or reason for no trial being held. See Huffman, 502 N.E.2d at 907; Pillars v. State (1979), 180 Ind.App. 679, 684-85, 390 N.E.2d 679, 683 (improper to assume trial court complied with rule where docket entry did not state reason trial court set trial date beyond time limit). Furthermore, our rule requiring an adequate record precludes review of alleged errors attributed to matters outside the record. Emmons v. State (1986), Ind., 492 N.E.2d 303. It seems inappropriate to assume that the record is incomplete simply because there are no docket entries on scheduled trial dates. The 84-day period of delay B cannot be charged to the defendant.

The Court of Appeals charged the defendant with delay C, February 10, 1987, to June 9, 1987, again presuming his waiver from the passing without objection of the scheduled trial dates of February 10 and April 6 and from his failing to object on March 18 to the setting of trial on June 9. As to the passing of February 10 and April 6 without trial and without objection, the defendant cannot be penalized, as discussed in the preceding paragraph. Furthermore, even where there is a failure to act which amounts to a waiver, such event cannot be characterized as a delay. If within the allotted time a trial court acts to schedule a trial beyond the deadline then existing such that the defendant's failure to object would amount to a waiver of his claim that such trial dates were beyond the time limit, State ex rel. Henson, 514 N.E.2d 838, the period embraced by these dates is not properly considered to be an inclusive time period chargable to the defendant as delay. Delay C comprising 119 days is not attributable to the defendant, although as dicussed below, his failure to object to the setting of the June 9 trial date waives any objection that such date is beyond the time allowed.

Delay D covers the 46-day period between the following events: 1) January 15, 1987, newly-elected Judge Trautman disqualified herself and sought the appointment by this Court of a special judge; and 2) March 2, 1987, Special Judge Long assumed jurisdiction after being appointed on February 20. The Court of Appeals reasoned that this period should not count against the State because of the "exigent circumstance" of not having a trial judge available to try the case.

This Court has recognized an exception to Crim.Rule 4(B) for court congestion where "any exigent circumstance ... warrant[s] a reasonable delay beyond the limitation of [Crim.R. 4], due deference being given to the defendant's speedy trial rights under the rule." Loyd v. State (1980), 272 Ind. 404, 409, 398 N.E.2d 1260, 1265, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. A trial court's determination of such a circumstance will be reversed only for an abuse of discretion. In Loyd, the trial court continued the trial to accommodate the prosecutor whose parents became seriously ill just before the scheduled trial date. The defendant asserts that the Loyd exception addresses a situation where a circumstance arises just before the time limit is about to expire, making trial within the limit impossible.

Citing State v. Bondurant (1987), Ind.App., 514 N.E.2d 301, the defendant argues that "[t]he absence of a judge should not have delayed the scheduling of trial as a date could have been set by the current judge and the new judge informed of its...