Norris v. State

Decision Date19 September 1979
Docket NumberNo. 378S47,378S47
Citation394 N.E.2d 144,271 Ind. 568
PartiesJames Robert NORRIS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant James R. Norris was convicted by a jury in the Rush Circuit Court on March 23, 1976, of theft, Ind.Code (Burns 1975) § 35-17-5-3, and of being a habitual criminal, Ind.Code (Burns 1975) § 35-8-8-1. He received an indeterminate sentence of one to ten years on the theft count and a life sentence on the habitual criminal count.

Appellant raises nine issues for our consideration, concerning:

(1) whether the trial court erred in overruling defendant's motion for examination by a psychiatrist of his own choosing;

(2) whether the trial court erred in overruling defendant's written motion to dismiss Count II of the information, the habitual criminal charge;

(3) whether the trial court erred in overruling defendant's oral motion to dismiss Count II;

(4) whether the trial court erred in permitting testimony concerning fingerprints taken from defendant during the trial;

(5) whether the trial court erred in permitting the State to amend Count II to conform to the evidence;

(6) whether the trial court erred in overruling defendant's motion for a directed verdict at the close of the State's evidence;

(7) whether the habitual criminal statute is unconstitutional;

(8) whether appellant was denied due process by the filing of the habitual criminal charge; and

(9) whether there is sufficient evidence to support the habitual criminal conviction.

In addition, we shall raise, Sua sponte, an issue concerning the sentencing of appellant.

I.

Appellant was examined by two psychiatrists appointed by the trial court. He thereafter requested permission to retain, at the State's expense, a psychiatrist of his own choosing. It appears from the record that appellant filed a plea of temporary insanity, which he withdrew after the trial court refused to allow him to retain, at State expense, a psychiatrist of his own choosing. He now argues that, if he had had the assistance of his own psychiatrist, he either would not have been forced to withdraw his temporary insanity plea, or might not have filed this plea. This argument is without merit.

Under Ind.Code (Burns 1975) § 35-5-2-2, psychiatrists are appointed by the court to examine the defendant And to testify at trial. Therefore, the trial court's refusal to allow appellant to retain his own expert did not, Per se, force appellant to withdraw his temporary insanity defense. Furthermore, our courts have previously held that this statute does not require the court to appoint psychiatrists of a defendant's choosing. Murphy v. State (1976) 265 Ind. 116, 123, 352 N.E.2d 479, 484; Bimbow v. State (1974) 161 Ind.App. 338, 348, 315 N.E.2d 738, 744. Appellant has made no showing of any prejudice resulting from the court's denial of additional experts for the preparation of his defense. See Roberts v. State (1978) Ind., 373 N.E.2d 1103. There is thus no error here.

II.

Appellant next argues that the trial court erred in overruling his written motion to dismiss Count II, the habitual criminal charge. This motion was filed prior to trial, and alleged that the addition of Count II to the original information was contrary to Ind.Code (Burns 1975) § 35-3.1-1-5(e). That subsection provides:

Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the crime charged; nor may any indictment or information be amended after arraignment for the purpose of curing a failure to charge or state a crime or legal insufficiency of the factual allegations.

Appellant contends that adding the habitual criminal count to the information changed the theory of the prosecution or the identity of the crime charged.

The habitual criminal statute, however, does not establish a separate crime; it merely provides for the imposition of a greater sentence for the crime charged. Eldridge v. State (1977) 266 Ind. 134, 361 N.E.2d 155, Cert. denied (1977) 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287. This Court has held, under facts very similar to those presented here, that amending the information to include a count under the habitual criminal statute is not error, so long as the defendant has adequate time to prepare his defense and his substantial rights are not otherwise harmed. Howard v. State (1978) Ind., 377 N.E.2d 628, 629, Cert. denied (1978) 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708. See Highsaw v. State (1978) Ind., 381 N.E.2d 470, 471. We find no error as to this issue.

III.

Appellant orally moved to dismiss Count II of the information immediately prior to the trial of this charge. In this motion he raised new alleged grounds for dismissing Count II. The trial court found that appellant had not complied with Ind.R.Crim.P. 3, which requires a written memorandum specifically describing the defects of which the movant complains. Appellant's earlier, written motion to dismiss properly contained this memorandum. However, the written motion and memorandum did not raise the issues he attempted to raise later in the oral motion. Under Rule 3, "(t)he party so filing such (written) motion shall be deemed to have waived his right thereafter to question the indictment or affidavit on any ground not so specified in the memorandum." The trial court therefore held that, by failing to include these grounds in his initial written motion to dismiss, he had waived this issue. Rule 3 was designed to prevent the repeated filing of motions to dismiss which raise new grounds each time. The trial court, therefore, was correct in overruling appellant's motion on this basis.

IV.

Appellant claims the trial court erred in admitting testimony from a police officer regarding fingerprints taken from appellant. Norris' fingerprints were taken during the trial, outside the presence of the jury and appellant's counsel. It is also apparent, however, that the objection to this evidence was withdrawn by the defendant. Record at 388. Therefore, appellant has waived this alleged error, unless he can show that failure to consider the issue would deny him fundamental due process. Blow v. State (1978) Ind.,372 N.E.2d 1166, 1167; Bell v. State (1977) Ind., 366 N.E.2d 1156, 1160. Taking appellant's prints without his counsel being present violated none of his constitutional rights. Frances v. State (1974) 262 Ind. 353, 357, 316 N.E.2d 364, 366; Hollars v. State (1972) 259 Ind. 229, 232, 286 N.E.2d 166, 168. See Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Cf. Adams v. State (1973) 260 Ind. 663, 299 N.E.2d 834, Cert. denied (1974) 415 U.S. 935, 94 S.Ct. 1452, 39 L.Ed.2d 494.

V.

Appellant next alleges the trial court erred in allowing the State to amend Count II to conform to the evidence. After the State presented its evidence relating to the habitual criminal charge, the prosecutor moved to amend the date of one of the prior convictions listed in the information to conform to the documentary evidence presented. We think the court properly allowed the amendment.

The statute relating to the amending of an information, Ind.Code (Burns 1975) § 35-3.1-1-5, states in part:

(a) An . . . information . . . may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

(9) Any other defect which does not prejudice the substantial rights of the defendant.

The amendment in question did not relate to a material element of the status charged in Count II, and appellant has not shown how curing the discrepancy affected his defense or prejudiced his substantial rights. Buchanan v. State (1975) 263 Ind. 360, 332 N.E.2d 213; Hilligoss v. State (1970) 253 Ind. 443, 255 N.E.2d 101; Herman v. State (1965) 247 Ind. 7, 210 N.E.2d 249. See Howard v. State, supra ; Johnson v. State (1972) 258 Ind. 383, 281 N.E.2d 473. The trial court did not err in permitting the amendment.

VI.

Appellant next claims the trial court erred in overruling his motion for a directed verdict at the close of the State's evidence. He argues that there was no showing: (1) that he was convicted twice of felonies within the common law meaning of "felony"; (2) of what constitutes a felony in Texas; and (3) that he was the individual convicted in Texas. Appellant's contentions are without merit.

It is settled that overruling a motion for a directed verdict is error only if there is a total lack of evidence on some essential issue or where the only inference which may be drawn from the evidence is in favor of the accused. Blow v. State (1978) Ind., 372 N.E.2d 1166, 1167. See Mendez v. State (1977) Ind., 367 N.E.2d 1081, 1084. The habitual criminal statute, Ind.Code (Burns 1975) § 35-8-8-1, speaks in terms of one who has been "twice convicted, sentenced and imprisoned in some penal institution, for felony . . . ." This Court has held that the word "felony" no longer has its common law meaning, and that "felony" must be interpreted in light of Ind.Code (Burns 1975) § 35-1-1-1, which states: "All crimes and public offenses which may be punished with imprisonment in the state prison shall be denominated felonies . . . ." See Kelley v. State (1933) 204 Ind. 612, 624, 185 N.E. 453, 458. Therefore, the State was not required to show two prior felony convictions which fit within the common law meaning of "felony." See Kelley v. State, Supra.

Appellant also claims there was no evidence as to what constituted a felony in Texas. However, page four of State's Exhibit eighteen, which a "Judgment" from the Criminal District Court of Harris County, Texas, recites in part:

"The Court . . . found the Defendant guilty of the offense of unlawfully...

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