Nagy v. State

• Decision Date: 25 March 1987
• Docket Number: No. 1285S538,1285S538
• Citation: 505 N.E.2d 434
• Parties: Alexander Robert NAGY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 434

505 N.E.2d 434

Alexander Robert NAGY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1285S538.

Supreme Court of Indiana.

March 25, 1987.

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Alexander Robert Nagy was found guilty by a jury in the Madison Circuit Court of robbery, a class B felony, theft, a class D felony, and escape, a class D felony. He was further adjudged to be an habitual offender. Appellant was sentenced by the trial court to ten (10) years for robbery, two (2) years for theft, and four (4) years for escape. The robbery sentence was enhanced by thirty (30) years due to the habitual offender finding. The sentences for robbery and theft were ordered to be served concurrently and the sentence for escape was to be served consecutively, for a total sentence of forty- four (44) years. All sentences were ordered to be served consecutively to the sentence Appellant was already serving.

Appellant raises six issues for our review in this direct appeal:

1. denial of a fair trial due to the shifting of his place of confinement;

2. error in refusing Appellant's request to peremptorily challenge jurors;

3. refusal of Appellant's tendered final instructions No. 11, 13, and 14;

4. misconduct of Prosecuting Attorney during closing argument;

5. improper sentencing; and

6. whether the verdict was contrary to law.

On November 16, 1983, Appellant and four other prisoners escaped from the Indiana State Reformatory in Pendleton, Indiana. Part of the escape plan required that someone pick them up in an automobile and take them to a house they considered safe. The automobile did not show up so the escapees looked for a place to steal an automobile and some money. At approximately 7:00 p.m., that same day, one of the escapees entered the Dairy Queen on Indiana 38 near Pendleton, bought some items, then left. He returned about fifteen minutes later, accompanied by Appellant and another man. One of the men told the employees not to scream, and announced a robbery. Another man came over the counter and grabbed a knife from the rear counter. The escapees emptied the cash registers and cut the telephone lines. They also forced another employee to give them her car keys and took her car. Before Appellant and the others drove off, they damaged a nearby pay phone.

About an hour later, at around 8:00 p.m., the stolen car was stopped by police near 96th Street and Allisonville Road, in Indianapolis. Appellant and one other man were captured but two of the others escaped and later were captured. Appellant was searched and found to be in possession of about one-hundred and thirty ($130.00) dollars from the Dairy Queen robbery. An employee of the Dairy Queen who was present during the robbery was brought and identified Appellant as one of the persons who robbed the Dairy Queen and stole the car. Appellant admitted participating in the robbery and escaping from the reformatory at Pendleton. The knife taken from the Dairy Queen and used in the robbery was found in a field adjacent to the Dairy Queen a few days later. At trial, Appellant asserted the defense of insanity, alleging he suffered from an irresistible impulse to escape which precluded him from forming the requisite intent to commit the crimes.

I

Appellant claims that during the time he was awaiting trial on these charges, his place of confinement was shifted to various places, depriving him of an opportunity to have meaningful consultation with his attorney. Appellant speaks in general terms and does not give precise dates and times of transfers nor does he point out in what way his defense was lacking due to this problem. It appears from the record that between January 16, 1984, when Appellant was charged, and August 6, 1985, the time of his trial, Appellant was transferred from the Reformatory at Pendleton to the Madison County Jail. After a short time, he was transferred to the Indiana State Prison. It also appears from the record that, due to some trouble or controversy in which Appellant was involved while in the Madison County Jail, he was transferred from there to the State Prison at Michigan City. In fact, there was evidence, including Appellant's own testimony, that he tended to be disruptive, and constantly attempted escape. There is no showing that the transfer was made for the purpose of preventing Appellant from conferring with counsel, or from preparing his defense. Nor is there any showing, other than Appellant's general allegations, that transfers had this effect. There is therefore no reversible error on this issue. See Hurley v. State (1983), Ind., 446 N.E.2d 1326.

II

Appellant claims the trial court erred by refusing Appellant's request to make additional peremptory challenges to two of the jurors. The trial court had called counsel for both parties to the bench and asked them to make their challenges to any jurors at that time. Defense counsel wrote one juror's name on a piece of notebook paper and that juror's name was struck by the judge. No additional challenges were made. After completing examination of the additional juror by all parties, the parties accepted the jury and the judge swore the jury. The court advised the jury as to the conduct expected of them while out of the courtroom, and while excused for lunch. At this point, defense counsel informed the judge there had been a misunderstanding between counsel and Appellant and that Appellant wished to make further peremptory challenges. Defense counsel informed the judge that at the time challenges were made, Appellant thought those challenges were for cause, and Appellant did not know that he was to make peremptory challenges at that time. Counsel, however, stated he was aware that peremptory challenges were to be made when the court requested them and, in fact, the challenge he made was a peremptory one. He stated, he felt he did not fully explain to his client that all challenges were to be made at that time and there would be no further opportunities to challenge. Counsel admitted there were no grounds for challenging any of the jurors for cause. The court refused any further challenges, claiming all parties had had ample opportunity to examine the jurors and make their challenges.

We first note that although parties have a right to peremptory challenges in selecting a jury, they are subject to reasonable regulation by the trial court. McBrady v. State (1984), Ind., 459 N.E.2d 719; Marsh v. State (1979), 272 Ind. 178, 396 N.E.2d 883. We held in both McBrady and Marsh that the trial court properly refused additional peremptory challenges after the parties were given an opportunity to examine prospective jurors, witnessed the examination by the opposing party, and made their challenge pursuant to local court rule. McBrady at 722; Marsh at 180, 396 N.E.2d at 885. Appellant had that opportunity here. More importantly, however, the trial court here was not in a position to grant further examination and challenges of prospective jurors. By assent of all parties, the jury was sworn, the trial began, and Appellant was in jeopardy. It therefore would have been necessary for the court to withdraw the submission of the cause to the jury and begin all over again. Maddox v. State (1951), 230 Ind. 92, 102 N.E.2d 225. No such motion was made, nor is that issue even discussed by Appellant in this appeal. There is, therefore, no merit to Appellant's contention that the trial court erred on this issue.

III

Appellant claims the trial court erred in refusing to give his tendered instructions 11, 13, and 14, which dealt with the defense of not guilty by reason of insanity. In reviewing this issue, we consider whether the tendered instruction is a correct statement of the law, whether there is evidence to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions given. McKean v. State (1986), Ind., 500 N.E.2d 1184, 1186; Van Orden v. State (1984), Ind., 469 N.E.2d 1153, 1161, cert. denied 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851.

The three instructions tendered by Appellant were brief statements of law. In our opinion their legal accuracy was questionable because they could have confused the jury. Furthermore, we find the trial court thoroughly and correctly instructed the jury on the subject of insanity. The trial court properly refused to give Appellant's tendered instructions.

IV

Appellant contends error was committed due to the Deputy Prosecutor's misconduct during closing arguments. The alleged misconduct consisted of improper comments on the evidence, and improper comments as to the witnesses' veracity. Appellant failed to bring this to the attention of the trial judge by objection or motion during the arguments. Failure to complain of alleged error at trial in a timely fashion constitutes waiver. Ard v. State (1985), Ind., 483 N.E.2d 64, 65; Bivins v. State (1982), Ind., 433 N.E.2d 387, 391. Appellant admits this is true but claims the Deputy Prosecutor's remarks amounted to fundamental error. Fundamental error is error such that, if not rectified, would be a denial of fundamental due process. Foster v. State (1985), Ind., 484 N.E.2d 965, 967. As stated in Nelson v. State (1980), 274 Ind. 218, 409 N.E.2d 637:

"To be characterized as fundamental error and thus to transcend our procedural requirements the error must be blatant and the potential for harm must be substantial and appear clearly and prospectively."

Nelson at 220, 409 N.E.2d at 638; Foster, 484 N.E.2d at 967. There is no fundamental error here.

In final argument it is proper for counsel to argue and discuss both the law and the evidence and all reasonable inferences which may be drawn therefrom, including argument as to positions or conclusions based on the attorney's...