Pierce v. State, No. 1076S341

Docket NºNo. 1076S341
Citation369 N.E.2d 617, 267 Ind. 240
Case DateNovember 28, 1977
CourtSupreme Court of Indiana

Page 617

369 N.E.2d 617
267 Ind. 240
James A. PIERCE, Appellant,
v.
STATE of Indiana, Appellee.
No. 1076S341.
Supreme Court of Indiana.
Nov. 28, 1977.

[267 Ind. 241] John S. Capper, IV, James R. Earnshaw, Crawfordsville, for appellant.

Page 618

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Pierce was convicted on March 11, 1976, by a jury in the Montgomery Circuit Court of the crime of commission of a felony while armed. He was sentenced to imprisonment for ten to thirty years.

On May 2, 1975, Mrs. Mary Beth Harmon and her children went to a shopping mall in Montgomery County. After finishing shopping she returned to her car and found that it would not start. She observed appellant in another car watching her. She went back to the mall and called her husband at [267 Ind. 242] work, who told her to leave the car and walk home. When she started to lock the car pursuant to her husband's suggestion, appellant came up and asked her if she was having trouble. He then began working under the hood and asked her to try to start the car. After several attempts failed, he told her he would try the coil and thereupon the car started. Appellant then told Mrs. Harmon that his car would not run and asked for a ride to a different location to buy automobile parts. She stated that although she was somewhat frightened, she agreed to take him there. She drove the car and appellant sat on the passenger's side while the children sat in the back seat. As she pulled out, appellant pulled a gun from his trousers and said, "Keep driving lady, or I'll kill the kids." She proceeded down the road for a short distance and then stopped the car, stepped out, and yelled for help to a passing truck. Appellant jumped from the car and ran.

Appellant presents five issues for review in this appeal: (1) failure to give him an arraignment; (2) admission of evidence obtained following an illegal arrest; (3) admission of identification testimony based upon an allegedly suggestive line-up; (4) admission of testimony of similar acts, and; (5) giving an instruction which allegedly misled the jury about possible verdicts.

I.

The first error alleged by appellant is that the trial court failed to give him an arraignment. After appellant's arrest, the court appointed two attorneys to represent and defend him. His appointed counsel filed a motion questioning appellant's competency to stand trial, and the court appointed a psychiatrist to examine appellant and to make a report to the court. A competency hearing was held, and the court after hearing all of the evidence found that appellant was competent to stand trial. By agreement of the parties, arraignment was held on September 11, 1975. Appellant refused to make any plea and stood mute on the given day, [267 Ind. 243] and the court accordingly entered pleas of not guilty on all charges.

The only question raised as to this arraignment is that the court did not give appellant either an advisement of rights or a reading of the charging affidavits or informations. Statutory law governing the procedure, Ind.Code § 35-4.1-1-1 (Burns 1975), provides:

"(a) Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests, the indictment or information shall be read to him before he is required to plead. A plea shall be entered unless the court grants further time.

"(d) If the defendant stand mute or refuses to plead to the indictment or information . . . a plea of not guilty shall be entered by the court. A judgment of conviction shall not be invalidated because of the failure of the record to show that the indictment or information was read to the defendant at arraignment or that the defendant entered a plea, unless the record shows that the defendant objected to entering upon the trial for lack of such arraignment."

The record shows that the above procedure was complied with. Appellant made no request to have the information read to him at the arraignment, nor did he at any time

Page 619

before trial object to the procedures in and during the arraignment. No objection was raised concerning the procedure followed in the arraignment until appellant's motion to correct errors was filed following his trial and conviction. Furthermore, the record shows that appellant was represented at all times by two competent attorneys, that he was in fact given a trial by jury, and that no irregularities occurred that would prejudice his rights by a lack of knowledge on his part. Appellant's first contention is thus without merit.

II.

Appellant next argues that he was illegally arrested and that evidence obtained therefrom was improperly admitted at trial. Appellant was arrested by Officer Swenke on May [267 Ind. 244] 29, 1975, on a warrant issued by the Crawfordsville city court on September 27, 1969, for failure to appear in traffic court on that date. Officer Swenke recognized that both the description of the person and the automobile involved in the traffic court case matched the description of the assailant and the automobile he drove in the present case, as given him by Mrs. Harmon. The officer was also aware that appellant had been convicted of a similar offense in the past. He became aware that an outstanding warrant was in the files that had not been served to that date. It is this warrant he took to appellant's home and made the arrest described above. Appellant was identified from a line-up by Mrs. Harmon on the night of this arrest. The charging affidavits in the present case were filed in the Montgomery Circuit Court on June 3, 1975, together with affidavits of probable cause signed by Louis S. Swenke of the Crawfordsville city police and Mary Beth Harmon, the alleged victim. On that same day the trial court issued a warrant for the appellant's arrest, and this warrant was served upon him on June 5, 1975.

The only question raised with reference to the allegedly illegal arrest is that evidence was obtained from it which taints such evidence and renders it inadmissible at trial. Such evidence, it is claimed, was the line-up at the police station on that night, May 29, at which Mrs. Harmon identified appellant. Officer Swenke testified at the suppression hearing that when he arrived at the police station with appellant, he immediately gave him the Miranda rights and warnings, and testified in detail as to what they consisted of. These warnings were admitted into evidence along with a waiver form which the defendant signed. Officer Swenke testified that appellant signed the waiver form, but he told the police that he was not going to make a statement and would tell them nothing about anything. They, therefore, asked him nothing further and no statements or confessions of appellant were admitted into evidence. Officer Swenke further testified that he asked appellant[267 Ind. 245] if he would appear in a line-up, and appellant replied he was willing to stand in a line-up but that he did not want to stand up there by himself: "If you get other people I will stand up there with them." There was some conflict in this evidence in that appellant testified at the...

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26 practice notes
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Grooms v. State, (1978) Ind., 379 N.E.2d 458, 463; Willis v. State, (1978) 268 Ind. 269, 272, 374 N.E.2d 520, 522; Pierce v. State, (1977) 267 Ind. 240, 248, 369 N.E.2d 617, 621. However, this rule did not require the exclusion of this evidence in this case. First, apparently the proposed r......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...probative on the question of motive. Norton v. State, supra; Gutierrez v. State, (1979) Ind., 395 N.E.2d 218, 222; Pierce v. State, (1977) 267 Ind. 240, 248, 369 N.E.2d 617, 621. As we explained above, this exhibit was clearly probative on the question of motive. The court did not err in ad......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1981
    ...guilt of a charged crime, except to show intent, motive, purpose, identification, or a common scheme or plan. Pierce v. State, (1977) 267 Ind. 240, 369 N.E.2d 617; Woods v. State, (1968) 250 Ind. 132, 235 N.E.2d 479. Here, the evidence of pending charges not only served to establish the "le......
  • Byrer v. State, No. 3-1080A322
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1981
    ...plan. Porter v. State, (1979), Ind., 397 N.E.2d 269; Willis v. State, (1978), 268 Ind. 269, 374 N.E.2d 520, 522; Pierce v. State, (1977), 267 Ind. 240, 248, 369 N.E.2d 617, The State contends that the evidence of the Hook's incident was admissible under the "common scheme or plan" exception......
  • Request a trial to view additional results
26 cases
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Grooms v. State, (1978) Ind., 379 N.E.2d 458, 463; Willis v. State, (1978) 268 Ind. 269, 272, 374 N.E.2d 520, 522; Pierce v. State, (1977) 267 Ind. 240, 248, 369 N.E.2d 617, 621. However, this rule did not require the exclusion of this evidence in this case. First, apparently the proposed r......
  • Lawson v. State, No. 1177S797
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1980
    ...probative on the question of motive. Norton v. State, supra; Gutierrez v. State, (1979) Ind., 395 N.E.2d 218, 222; Pierce v. State, (1977) 267 Ind. 240, 248, 369 N.E.2d 617, 621. As we explained above, this exhibit was clearly probative on the question of motive. The court did not err in ad......
  • Underhill v. State, No. 181S17
    • United States
    • Indiana Supreme Court of Indiana
    • December 3, 1981
    ...guilt of a charged crime, except to show intent, motive, purpose, identification, or a common scheme or plan. Pierce v. State, (1977) 267 Ind. 240, 369 N.E.2d 617; Woods v. State, (1968) 250 Ind. 132, 235 N.E.2d 479. Here, the evidence of pending charges not only served to establish the "le......
  • Byrer v. State, No. 3-1080A322
    • United States
    • Indiana Court of Appeals of Indiana
    • July 27, 1981
    ...plan. Porter v. State, (1979), Ind., 397 N.E.2d 269; Willis v. State, (1978), 268 Ind. 269, 374 N.E.2d 520, 522; Pierce v. State, (1977), 267 Ind. 240, 248, 369 N.E.2d 617, The State contends that the evidence of the Hook's incident was admissible under the "common scheme or plan" exception......
  • Request a trial to view additional results

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