Owens v. State

• Decision Date: 18 September 1975
• Docket Number: No. 874S161,874S161
• Citation: 48 Ind.Dec. 725,263 Ind. 487,333 N.E.2d 745
• Parties: Robert OWENS and Anthony Owens, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 745

333 N.E.2d 745

263 Ind. 487

Robert OWENS and Anthony Owens, Appellants, v. STATE of Indiana, Appellee.

No. 874S161.

Supreme Court of Indiana.

Sept. 18, 1975.

Harry Kremer, Jr., Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., J. Roland Duvall, Deputy Atty. Gen., for appellee.

ARTERBURN, Justice.

I.

The Appellants, Robert Owens and Anthony Owens, stand convicted of First Degree Murder while in the Commission of Robbery (Count I) and First Degree Murder (Count II). Appellants set forth twelve (12) contentions. We first consider their claim that the competent evidence presented by the State was insufficient to sustain the conviction.

In reviewing an allegation that a verdict is not supported by sufficient evidence, this court will not weigh the evidence or resolve questions concerning the credibility of witnesses. Rather, the court will look to the evidence most favorable to the State and reasonable inferences to be drawn from that evidence. A conviction will be upheld if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, and cases cited therein.

State's witness Jacqueling Brodley testified that on the day of the crime, October 25, 1973, she was employed as a sales clerk at the Lichtenberg Department and Hardware Store in Indianapolis. On the morning of October 25 she saw three men come into the store, one after the other. She waited on the first of these men. He picked out some items and gave the witness a one hundred dollar bill to pay for them. This witness identified Appellant Robert Owens as the man she waited on.

Miss Brodley further testified that she gave the hundred dollar bill to the store owner, Charles Caplin, who turned to put the money in a file cabinet. While the witness was ringing up the items on the cash register she heard a shot. She turned around and saw Caplin on the floor and Robert Owens standing near the counter with a gun in his hand. Appellant Robert Owens then told her to lie down on the floor and she did so. The testimony is that she then heard change being cleared from the cash register drawer and heard statements from another man, after which Appellant Robert Owens and his apparent accomplice left.

State's witness Yvonne Arlene Laswell, another store employee, testified that while Jacqueline Brodley was waiting on one man, a second came into the store and that she assisted him. She testified that this person was not present in the courtroom, but identified a photograph of him. She heard a shot and heard her name being called out by Miss Brodley. The next thing she knew a man was at her back holding a gun to her head. She lay down on the floor at his instruction. She identified this third man as Appellant Anthony Owens. She identified the man assisted by Miss Brodley as Appellant Robert Owens.

State's witness William Lovett testified that on the morning of October 25, 1973, he went into the Lichtenberg store to make a purchase. He went to the back check-out counter and asked who was in the hardware department. Charles Caplin, who was wiping off a shotgun with a white tag on it, responded that he would be with Lovett in a minute. As Lovett turned toward the hardware department he heard a shot. He turned, saw Caplin fall and saw a man with a gun. He identified this man as Appellant Robert Owens. Lovett then testified that he lay on the floor at Robert Owens' instruction.

Police officer James Pearcy, a fingerprint technician with the Indianapolis Police Department, testified that on October 25, 1973, he arrived on the scene of the crime in question shortly after its occurrence. He proceeded to a counter where he received shirts which he was told had been handled by the person who did the shooting. He identified State's Exhibit No. 9 as the card upon which he placed a latent fingerprint taken from the shirt package marked State's Exhibit No. 12. He testified that the fingerprint taken from the package was the print on the card.

Police officer Charles Cress, also a fingerprint technician with the Indianapolis Police Department, identified State's Exhibit No. 10 as a set of fingerprints he obtained from Appellant Robert Owens on October 26, 1973. He then compared these prints to the latent print of State's Exhibit No. 9. He proceeded to show that the left thumbprint of Robert Owens matched with the latent fingerprint from the shirt package recovered by Officer Pearcy.

Appellants point out that this testimony was opposed by direct alibi testimony. This is true, but it is not the province of this court to resolve the inconsistencies of conflicting testimony. We can only conclude that there is no merit to Appellants' sufficiency contention.

II.

IC 1971, 35--3.1--1--1(c) (Burns Ind.Stat.Ann. § 9--903 (1974 Supp.)) provides in part:

'Whenever an indictment or information is filed, the clerk of the court shall endorse thereon the date of filing and the indictment or information shall be recorded in a record book kept for that purpose by the clerk.'

Appellants moved to quash the indictment in this case because it was not file-stamped. Appellants now claim error in the trial court's denial of this motion and ordering of a nunc pro tunc entry to show the filing of the indictment. We cannot agree. A trial court has the power and a duty to order a nunc pro tunc entry to correct such a clerical error. Waterman v. State (1888), 116 Ind. 51, 18 N.E. 63; Long v. State (1877), 56 Ind. 133. Appellants make no claims that the indictment was in fact not filed and make no showing of prejudice resulting from this clerical mistake. The motion to quash was properly denied.

III.

Appellants contend that the delay of some six days between their arrest and arraignment violated their rights guaranteed by Article I, § 15 of the Constitution of the State of Indiana. That section provides:

'No person arrested, or confined in jail, shall be treated with unnecessary rigor.'

Appellants have not explained how the delay complained of resulted in 'unnecessary rigor', and we do not see that Article I, § 15 applies here. It would be more logical to cite § 12 of Article I of the Constitution of the State of Indiana or the Sixth Amendment of the United States Constitution, both of which guarantee the right to a speedy trial. Even such interpretation of this issue is no help to Appellants here.

There is no Indiana statute or court rule which fixes a specific time within which a defendant must be arraigned. In the absence of such a specific provision, an appellant must show that such delay was both unreasonable and prejudicial in order to show violation of the Sixth Amendment right to a speedy trial. United States v. Kaufman (1968), 7 Cir., 393 F.2d 172, cert. den., 393 U.S. 1098, 89 S.Ct. 892, 21 L.Ed.2d 789, and cases cited therein. Appellants have neither shown that the delay here was unreasonable nor that it was prejudicial. We find no merit in this issue.

IV.

On the day of trial the State filed a motion to amend the indictment. Appellants contend their timely objections were erroneously overruled and amendment erroneously allowed. The original indictment alleged in both counts that there was a 'shooting at and against the body of said Charles Caplin with a shotgun then and there loaded with gunpowder and metal pellets.' The amendment substituted the word 'revolver' for the word 'shotgun', and the word 'bullets' for the word 'pellets.'

IC 1971, 35--3.1--1--5 (Burns Ind.Stat.Ann. § 9--907 (1974 Supp.)) provides:

'Amendment of charge.--(a) An indictment or information which charges the commission of a crime shall not be dismissed but 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.

(b) The indictment or information may be amended in matters of substance giving notice to the defendant and with the consent of the court, at any time before arraignment. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

(c) Upon motion of the prosecutor the court (may) at any time before, during or after the trial permit an amendment to the indictment or information in respect to any defect, imperfection or omission in form which does not prejudice the substantial rights of the defendant.

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any adjournment or postponement of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.

(e) 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 an 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.'

In State ex rel. Kaufman v. Gould (1951), 229 Ind. 288 at 291, 98 N.E.2d 184 at 185, this court stated:

'The rule as to whether an amendment is as to substance or form can be stated thus. If the defense under the affidavit as it originally stood would be equally available after the amendment is made, and if any evidence the accused might have would be equally applicable to the affidavit in the one form as in the other, then the amendment is of form and not of substance.'

Souerdike v. State (1951), 230 Ind. 192 at 195, 102 N.E.2d 367 at 368 added this:

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