Partlow v. State

• Decision Date: 22 September 1983
• Docket Number: No. 182S28,182S28
• Parties: Darrin W. PARTLOW, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 259

453 N.E.2d 259

Darrin W. PARTLOW, Appellant, v. STATE of Indiana, Appellee.

No. 182S28.

Supreme Court of Indiana.

Sept. 22, 1983.

Arvin R. Foland, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Darrin W. Partlow was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl.1979), and Robbery, Ind.Code Sec. 35-42-5-1 (Burns Repl.1979), at the conclusion of a jury trial in Montgomery Circuit Court on July 3, 1981. Partlow was given forty (40) years imprisonment for the murder and thirty (30) years imprisonment for the robbery; both sentences were ordered to be served consecutively. Partlow now appeals.

Defendant Partlow raises eleven issues on appeal, concerning:

1) whether the juvenile court properly acquired jurisdiction and properly waived the defendant to criminal court;

2) whether the trial court erred in its discovery orders;

3) whether the trial court erred in denying the defendant's motion to suppress certain evidence;

4) whether the trial court erred in denying the motion for sequestration of the jury and individual examination of the jurors during the voir dire 5) whether the trial court erred in denying the motion to dismiss the death penalty count;

6) whether the trial court erred in ruling on the admission of certain evidence;

7) whether the trial court erred in denying the motion for mistrial;

8) whether the trial court erred in denying the motion for judgment on the evidence and whether there was sufficient evidence for the convictions;

9) whether the trial court erred by giving the State's tendered instructions 1 and 2;

10) whether the trial court erred by refusing the defendant's tendered instruction 1, and in modifying the defendant's tendered instruction 3; and,

11) whether the trial court erred in denying the defendant's petition to be let to bail.

Elizabeth Moore was found dead in her home in Sheridan, Indiana, on November 21, 1980. Her throat had been cut by a sharp weapon and a pencil had been jabbed in her throat. A police investigation ensued and local civic groups also assisted in searching for evidence. Two of the defendant's brothers found the victim's purse wrapped up in a sweater jacket. The brothers informed the police that the sweater jacket was similar to the one their brother, Darrin Partlow, had been wearing on the night of the murder. The brothers also related some other information that clearly made the defendant a suspect in the case. Armed with this information, the police went to the defendant's home in order to ask some additional questions. After the defendant made a taped statement, the police placed him under arrest.

I

The defendant claims that the juvenile court did not gain jurisdiction of him because an initial hearing, pursuant to Ind.Code Sec. 31-6-4-13(b) (Burns Repl.1980), was not held. The record shows that this is true. However, at the detention hearing held on November 26, 1980, the juvenile court advised the defendant of his right to remain silent and to not testify, of his right to an attorney and, in fact, appointed an attorney at public expense to represent him. The defendant was also told that probable cause had been found to permit the filing of charges of murder and robbery. The juvenile court also found that it was in the defendant's best interest to keep him in juvenile detention. The State contends that an initial hearing was not required under the facts of this case since it was proper to hold a waiver hearing before an initial hearing became necessary. We agree with the State on this issue.

Ind.Code Sec. 31-6-4-13 sets out the procedures to be followed once a petition alleging delinquency has been filed. Section (b) provides that an initial hearing shall be held on each petition. Section (c) provides for a determination by the juvenile court of whether or not counsel has been obtained by the juvenile and also provides for the appointment of counsel, which was done here. Section (d) provides that the court shall determine whether the prosecutor seeks to obtain a waiver of jurisdiction under Ind.Code Sec. 31-6-2-4. Section (d) further provides that if waiver is sought, the juvenile court may not accept an admission or denial of the allegations from the juvenile under subsection (i) and shall schedule a waiver hearing and advise the juvenile according to section (e). Succeeding sections set out the procedures to be followed if the juvenile is to remain in the juvenile court and generally provide for all procedures to be taken by the juvenile court other than the handling of a waiver petition. A logical interpretation of the statute and all other statutes in the juvenile code would indicate that where a waiver of jurisdiction is sought, all other proceedings directed toward a determination of delinquency would cease until that issue has been resolved. That was the procedure the juvenile court followed here. It would logically follow that if the juvenile court decides not to waive the juvenile to criminal court, then the sections providing for the procedures to be followed in the juvenile court would come into play and at that time an initial hearing could be held and all other procedures set out in 31-6-4-13 would be followed.

Ind.Code Sec. 31-6-2-4 is concerned with the waiver of jurisdiction by the juvenile court. Section (c) reads as follows:

Upon motion of the prosecutor and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:

(1) The child is charged with an act that would be murder if committed by an adult;

(2) There is probable cause to believe that the child has committed the act; and

(3) The child was ten years of age or older when the act charged was allegedly committed;

unless it would be in the best interests of the child and of the safety and welfare of the community for him to remain within the juvenile justice system.

Ind.Code Secs. 31-6-7-6(a), (b) and (c) also set specific time limitations in which the juvenile court must take certain actions. Included among these actions is the waiver hearing but the initial hearing is not involved in these provisions. These time limitations will be considered later in this issue. When the juvenile court set the waiver hearing here, it informed the parties that it appeared there was probable cause that the defendant had committed the crime of murder and that therefore it would probably have no alternative except to waive jurisdiction. That matter was accordingly pursued. It appears that the initial hearing is to take the place of what is commonly called an arraignment in criminal court. Since no trial is to be held in the juvenile court if waiver is granted, then, of course, that proceeding is not necessary since the action will move to criminal court where there will be an arraignment on the trial to take place there. We note again that the juvenile court did advise the defendant of his rights and did, in fact, appoint counsel for him. There is no denial of these facts. The juvenile court followed the procedures pursuant to the juvenile code and the trial court properly obtained jurisdiction over this defendant.

The defendant also contends that the juvenile court did not obtain jurisdiction because he was not properly taken into custody. Defendant's argument seems to be based on his claim that he was actually placed under arrest when the police came into his home and further claims that they had no probable cause to come into his home or to arrest him. In the first place, it does not appear that the defendant was taken into custody at the time the police came to his home and, in fact, was not placed under arrest until after he had given his statement at the police station. The police did come into his home without a warrant but they entered upon invitation of the family and their entrance was not illegal or improper. They were admitted into the home and in fact were invited to sit down and members of the family, including the defendant and his mother, openly agreed to talk to them and further agreed to accompany them to the police station for purposes of further discussion. Furthermore, Ind.Code Sec. 31-6-4-4(b) states: "A child may be taken into custody by any law enforcement officer acting with probable cause to believe that the child has committed a delinquent act." The police at this time had information that gave them probable cause to go to the defendant's home and, in fact, take him into custody at that time, although they did not do so.

Defendant further argues that the court erred in exercising jurisdiction over him because no copy of the preliminary intake report was sent to the prosecutor as required by Ind.Code Sec. 31-6-4-7(e). This argument, however, was not raised below in the defendant's motion for discharge and his arguments on appeal therefore are predicated upon grounds different than those raised in the lower court and we must consider this issue waived. Davidson v. State, (1982) Ind., 442 N.E.2d 1076; Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. The record does show, however, that the intake officer did file a preliminary inquiry dated December 3, 1980.

Finally, the defendant claims there was a loss of jurisdiction because of the failure to file the delinquency petition within seven days after his arrest and the failure to hold the waiver hearings within twenty days after the delinquency petition was filed. Ind.Code Secs. 31-6-7-6(a) and (b) read as follows:

(a) If the child is in detention, a petition alleging delinquency must be filed within seven days (excluding Saturdays, Sundays, and legal holidays ) after he is taken into custody.

(b) If the child is in detention and a petition has been filed, either a fact-finding hearing or a waiver hearing must be commenced within twenty days (excluding Saturdays, Sundays, and legal holidays ) after the...