Parks v. State, No. 478S75

Docket NºNo. 478S75
Citation389 N.E.2d 286, 270 Ind. 689
Case DateMay 16, 1979
CourtSupreme Court of Indiana

Page 286

389 N.E.2d 286
270 Ind. 689
Larry A. PARKS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 478S75.
Supreme Court of Indiana.
May 16, 1979.

[270 Ind. 690]

Page 288

Sharon Carroll Clark, Greg & Clark, Anderson, for appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Larry Albert Parks, was charged by Information with first-degree burglary, Ind.Code § 35-13-4-4 (Burns 1975), on March 7, 1977. He was additionally charged with being an habitual criminal offender, Ind.Code § 35-8-8-1 (Burns 1975), on August 23, 1977. [270 Ind. 691] He was found guilty on both charges by a jury in October, 1977, and was sentenced to life imprisonment on the second count. He now raises the following issues in his direct appeal.

1. Whether his rights to a speedy trial and effective assistance of counsel were denied;

2. Whether the habitual criminal offender statute is unconstitutional;

3. Whether the court erred in admitting into evidence certain of the state's exhibits;

4. Whether there was sufficient evidence to support the verdict and deny defendant's motions for directed verdict;

5. Whether the court erred in overruling defendant's motion for mistrial following prejudicial remarks of a witness;

6. Whether the court erred in giving one of the state's preliminary instructions over defendant's objection; and

7. Whether the court erred in refusing to sentence the defendant under the new habitual offender statute, Ind.Code § 35-50-2-8 (Burns 1979).

The facts from the record most favorable to the state can be briefly summarized as follows. While the victim, Mrs. Geneva Stewart, was away from her home in Anderson, Indiana, on a one-month vacation, the home was entered and in part ransacked. A silent alarm system alerted the Anderson police department, and several officers arrived in time to see one person flee from the house and a second person stand briefly at the front door and then reenter the house. This second individual was wearing a tan jacket and blue hat.

Page 289

When the house was searched, the defendant was found hiding in a crawl space adjoining a basement room. Several items were found with him including a tan jacket, blue hat, rubber gloves, and a blue switchblade knife. Some coins and jewelry were found strewn along the side and back of a chair in the living room. Mrs. Stewart testified that she had locked all her doors and windows before she left on vacation and that she had never given defendant permission to enter her house. She also testified that she kept the coins and jewelry found on the chair in [270 Ind. 692] a dresser drawer in her bedroom on the second floor and that the dresser drawers had been rifled.

I.

The defendant first contends that the court erred in denying his motion for discharge based on a denial of his right to a speedy trial. The defendant filed a request for a speedy trial on July 12, 1977, about four months after he was charged with the offense of first-degree burglary. The court granted the motion on July 28, 1977, and assigned the cause for trial on September 13, 1977. The state then filed the additional charge of being an habitual criminal offender on August 23, 1977. Thereafter the defendant filed an objection to trial date on August 29, 1977, and on September 7, 1977, orally moved for a continuance. This motion was granted by the court and the trial was set for October 3, 1977.

We have clearly held that when a motion for speedy trial has been made under Ind.R.Crim.P. 4(B), and the trial court has acted on that motion by setting a trial date, the motion will be deemed to have served its purpose. The defendant must then file a second motion for immediate trial to invoke his right under the rule when the trial is continued due to his action. Cody v. State, (1972) 259 Ind. 570, 290 N.E.2d 38. The continuance in this case was requested by the defendant, so there was no error in the denial of his motion for discharge.

The defendant further contends that the state should not have been permitted to file the information for habitual criminal offender only three weeks prior to the scheduled date of trial since this denied him of his constitutional right to adequate representation of counsel on this second count. However, the defendant was granted a continuance to enable him to prepare a defense on this count. Further, the defendant has not shown how a more extended preparation time would have disclosed any additional evidence on this count, so there is no inference of ineffectiveness from minimal consultation or preparation time. Grimes v. State, (1977) 266 Ind. 684, 366 N.E.2d 639; Haddock v. State, (1973) 260 Ind. 593, 298 N.E.2d 418.

II.

The defendant raised several grounds...

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40 practice notes
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Spears v. State, (1980) Ind., 401 N.E.2d 331; Parks v. State, (1979) Ind., 389 N.E.2d 286. This basic standard of review has clearly been held as the rule consistently followed by this Court, although we have also recognized that ther......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...is that an inference might reasonably be Page 1300 drawn from it which supports the finding of the jury. Parks v. State, (1979) Ind., 389 N.E.2d 286; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349. The evidence was sufficient for the jury to have found beyond a reasonable doubt that W......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...as the exhibits concerned become decreasingly susceptible to alteration, tampering, substitution, or fungibility. Parks v. State (1979), 270 Ind. 689, 694, 389 N.E.2d 286, 290; Pollard v. State (1979), 270 Ind. 599, 611, 388 N.E.2d 496, 505; Wilson v. State (1975), 263 Ind. 469, 481, 333 N.......
  • Hall v. State, No. 779S185
    • United States
    • Indiana Supreme Court of Indiana
    • June 14, 1980
    ...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Parks v. State, (1979) Ind., 389 N.E.2d 286; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d In the instant case, there was evidence that the victim was subjected to a continuing pattern of ......
  • Request a trial to view additional results
40 cases
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...of the jury. Hall v. State, (1980) Ind., 405 N.E.2d 530; Spears v. State, (1980) Ind., 401 N.E.2d 331; Parks v. State, (1979) Ind., 389 N.E.2d 286. This basic standard of review has clearly been held as the rule consistently followed by this Court, although we have also recognized that ther......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...is that an inference might reasonably be Page 1300 drawn from it which supports the finding of the jury. Parks v. State, (1979) Ind., 389 N.E.2d 286; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d 1349. The evidence was sufficient for the jury to have found beyond a reasonable doubt that W......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • June 24, 1986
    ...as the exhibits concerned become decreasingly susceptible to alteration, tampering, substitution, or fungibility. Parks v. State (1979), 270 Ind. 689, 694, 389 N.E.2d 286, 290; Pollard v. State (1979), 270 Ind. 599, 611, 388 N.E.2d 496, 505; Wilson v. State (1975), 263 Ind. 469, 481, 333 N.......
  • Hall v. State, No. 779S185
    • United States
    • Indiana Supreme Court of Indiana
    • June 14, 1980
    ...but only that an inference may reasonably be drawn therefrom which supports the finding of the jury. Parks v. State, (1979) Ind., 389 N.E.2d 286; Jones v. State, (1978) 268 Ind. 640, 377 N.E.2d In the instant case, there was evidence that the victim was subjected to a continuing pattern of ......
  • Request a trial to view additional results

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