Newman v. State, 669S133
| Decision Date | 31 August 1970 |
| Docket Number | No. 669S133,669S133 |
| Citation | 254 Ind. 578,261 N.E.2d 364 |
| Parties | Danny NEWMAN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frederick J. Graf, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.
This was a criminal action commenced by the State of Indiana by filing an Indictment charging the defendant-appellant, Danny Newman, and three other persons, Robert Frye, William Penn and Clinton Wadlington, with the felonies of Kidnapping, as defined by Burns Indiana Statutes Annotated § 10--2901, and Rape, as defined by Burns Indiana Statutes Annotated § 10--4201.
Appellant Newman was tried separately in said court by a jury, the trial beginning on January 28, 1969, and the verdict of the jury was rendered January 31, 1969. The verdict of the jury found the defendant's age to be 21 years, and the appellant was found guilty of the crime of kidnapping and on that charge was sentenced to the Indiana State Prison for life, and was likewise found guilty on the charge of rape and on that charge was sentenced to the Indiana State Prison for not less than two nor more than twenty-one years.
The indictment in two counts charging the appellant with the crimes of kidnapping and rape reads, in pertinent part, as follows:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that ROBERT FRYE; DANNY NEWMAN; WILLIAM PENN; CLINTON WADLINGTON on or about the 4th day of AUGUST, A.D. 1967, at and in the County of Marion and in the State of Indiana, did then and there feloniously, fraudulently and forcibly carry away, decoy and kidnap the following person, namely: DONNA BARTON, from a place within said State of Indiana, to-wit: 21st and Station Streets, City of Indianapolis, in said County of Marion, in said State of Indiana, with the felonious intention then and there and thereby of carrying the said DONNA BARTON, away from said place within said State and said acts were not then and there done in pursuance of the laws of the State of Indiana or of the United States, then and there being contrary to the form of the statute of such case made and provided, and against the peace and dignity of the State of Indiana.
COUNT TWO:
The Grand Jurors aforesaid, upon their oaths aforesaid, do further present that ROBERT FRYE; DANNY NEWMAN; WILLIAM PENN and CLINTON WADLINGTON, on or about the 4th day of August, 1967, at and in the County of Marion and the State of Indiana, did then and there unlawfully and feloniously have carnal knowledge of DONNA BARTON, a woman, forcibly and against her will, she the said DONNA BARTON, then and there not being the wife of ROBERT FRYE; DANNY NEWMAN; WILLIAM PENN or CLINTON WADLINGTON, or either of them, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
On May 16, 1968, the appellant filed his notice of alibi, to which the State filed its answer on May 20, 1968.
The State, on January 13, 1969, orally moved for a joint trial of the four defendants named in the indictment. This motion was overruled by the trial court.
On January 27, 1969, the appellant filed a motion to suppress evidence which reads, omitting formal parts and memorandum, as follows:
'Comes now the defendant, DANNY NEWMAN, by his attorney, FELSON BOWMAN, and for his motion to suppress evidence would respectfully show the Court as follows:
1. The defendant, Danny Newman (hereinafter referred to as 'defendant'), is a defendant in the above-entitled cause which is a prosecution for Rape and Kidnapping.
2. That the defendant was arrested by certain members of the Indianapolis Police on or about the 6th day of August, 1967, and taken to the Homicide office of the Indianapolis Police Department.
3. That while being confined at the aforesaid Homicide office, the defendant was not represented by counsel, nor was he given an opportunity to secure counsel. Further, that the defendant was denied the right to counsel although he did not waive said right to counsel.
4. That during the confinement as aforesaid, the defendant was forced to appear in a lineup wherein the defendant was the only person in the said lineup, and where the alleged victim, and prosecution witness, DONNA BARTON, was asked to identify the defendant. Further, that the above lineup was conducted at a time where the defendant was not represented by counsel, nor afforded an opportunity to secure one.
5. That defendant was prejudiced and denied due process of law because of the suggestive nature of the aforesaid lineup.
6. That since the aforesaid lineup was conducted, the aforesaid witness has viewed the defendant and viewed pictures of the defendant.
7. That the defendant would be prejudiced by any statements of the prosecution witness regarding his identification.
WHEREFORE, the defendant prays that this Court order suppressed all testimony of the witness, DONNA BARTON, regarding identification of the defendant.'
After the hearing upon the motion to suppress, the trial court sustained the portion of the motion dealing with the identification of the appellant by the prosecuting witness at the pre-trial lineup, and ordered the prosecutor to make no reference to the pre-trial identification during trial.
On February 28, 1969, the appellant filed a 'Motion in Arrest of Judgment or, In the Alternative, Motion to Amend the Verdict.' Omitting formal parts and memorandum, that motion reads as follows:
'Comes now the defendant, DANNY NEWMAN, by his attorney, FELSON BOWMAN, and for his Motion in Arrest of Judgment or, in the Alternative, Motion to Amend the Verdict, would respectfully show the Court, as follows:
1. That defendant, Danny Newman (hereinafter referred to as 'defendant'), was a defendant tried separately by jury in the above-entitled cause which is a grand jury prosecution by indictment in two Counts for (No. 1) kidnapping, and (Mo. 2) rape.
2. That the defendant was, on the 31st day of January, 1969, found guilty on both Counts, and was, thereafter, sentenced to life imprisonment upon Court I, and for imprisonment of not less than two (2) nor more than twenty-one (21) years as to Count II.
3. That the grand jury which found the indictment had no legal authority to inquire into the offense charged in Court I for the reason that such charged offense (frderal kidnapping) was not within the jurisdiction of the instant offense (federal kidnapping) was not
4. That, in any event, judgment should only have been entered for the greater offense, which in this case was 'kidnapping.' It was error to enter judgment for both kidnapping (a greater offense with a possible sentence of life in prison) and rape (a lesser offense with an indeterminate sentence of not less than two (2) nor more than twenty-one (21) years in prison.)
WHEREFORE, the defendant prays that this Court arrest judgment as to both Counts or, in the alternative, that this Court order the verdict be amended and judgment rendered accordingly on but one Count of the conviction.'
On the same date the appellant filed his motion for a new trial which reads, in pertinent part, as follows:
'Comes now the defendant, Danny Newman, in the above entitled cause, and respectfully moves that the Court grant him a new trial herein for the following causes, or any one of them:
1. Irregularity in the proceedings of the Court in overruling the defendant's motion to suppress evidence and in thereafter admitting such evidence and the poisoned 'fruit' thereof against defendant.
2. Irregularity in the proceedings of the Court for failing before trial to discharge defendant for delay under Supreme Court Rule 1--4D.
3. Error of law occurring at the trial in this, to-wit: That the Court erred in refusing to give defendant's tendered Instruction No. 1, not covered by other instructions given.
4. Error of law occurring at the trial in this, to-wit: That the Court erred in refusing to give defendant's tendered Instruction No. 2, not covered by other instructions given.
5. Error of law occurring at the trial in this, to-wit: That the Court erred in amending defendant's tendered Instruction No. 3 before § instructing the jury as the unamended instruction tendered by defendant is a correct statement of the law not other wise covered by other instructions given.
6. Error of law occurring at the trial in this to-wit: That the Court erred in refusing to give defendant's tendered Instruction No. 4, not covered by other instructions given.
7. Error of law occurring at the trial in this, to-wit: That the Court erred in amending defendant's correctly stated and tendered Instruction No. 5, before instructing the jury, for the reason that the instruction, as amended, distorts the otherwise correct statement of the law in the unamended version of the instruction all to the harmful prejudice to the presumption of innocence then surrounding the defendant.
8. Irregularity in the proceedings of the Court and orders of the Court and abuse of discretion by which the defendant was prevented from having a fair trial in this, to-wit:
The Court permitted Police Sgt. Lund to remain in the courtroom at all times with the Deputy Prosecuting Attorney after previously granting a motion to separate the witnesses. Sgt. Lund was a witness ror the State and was so designated on the original Indictment.
9. Error of law occurring at the trial in this, to-wit: That the Court erred in permitting the case to go to the jury at the conclusion of all the evidence over the objection of the defendant.
10. Error of law occurring at the trial in this to-wit: That the Court erred in failing to arrest the judgment as to Count One on its own motion when it became apparent that such offense was not within the jurisdiction of the Court.
11. The defendant was not accorded his respective constitutional privileges against...
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