Reed v. State
| Decision Date | 07 April 1986 |
| Docket Number | No. 484S143,484S143 |
| Citation | 491 N.E.2d 182 |
| Parties | O. Scott REED, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Jere L. Humphrey, Plymouth, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
This is a direct appeal from a conviction of theft, a class D felony, I.C. Sec. 35-43-4-2, and from a habitual offender determination, I.C. Sec. 35-50-2-8. A jury tried the case. Appellant received a four year sentence for theft which the trial court enhanced by thirty years because of the habitual offender determination.
Appellant raises eight issues on appeal: (1) whether trial court erred in not discharging him pursuant to the Interstate Agreement on Detainers Act; (2) whether trial court erred in refusing his tendered "circumstantial evidence" instruction; (3) whether trial court erred in giving a "greatest weight of the evidence" instruction in a criminal case; (4) whether trial court erred in admitting into evidence a transcript of a telephone conversation which allegedly involved him; (5) whether trial court erred in not admitting into evidence on cross-examination a report mentioned on direct examination; (6) whether trial court erred in not permitting him to cross-examine a police officer concerning the location of a confidential vehicle identification number, (7) whether trial court denied him due process in permitting him to represent himself without, at the same time, affording him direct access to witnesses and legal facilities; (8) whether trial court erred in admitting into evidence at the habitual offender proceeding State's Exhibits # 1, # 2, # 3, # 4, and # 5.
These are the facts from the record that tend to support the determination of guilt. In June 1979, the Wabash Valley Bank foreclosed on its security interest in a 1977 Ford pick-up truck, identification number F14 SCY 89 261. Wabash Valley Bank then sold the truck to the appellant for thirteen hundred dollars in cash. In August 1979, the First National Bank of Rochester loaned M. & S. Salvage four thousand dollars; the same truck became the collateral for the loan. Appellant signed the note. The First National Bank of Rochester regarded appellant as the owner of M. & S. Salvage, and the appellant had communicated to others that he was the owner of M. & S. Salvage.
On October 6, 1979, appellant reported the same truck as stolen from a K-Mart parking lot in South Bend. Auto Owner's Insurance Company paid $4,660 on the resulting loss claim. Marsha L. Reed had title to the truck and the insurance company had issued the policy in her name. Marsha Reed was actually Marsha Lee, a woman with whom appellant was living at the time. The insurance proceeds were used to pay the remaining sum of $3,101.52 to the First National Bank of Rochester on the note that appellant signed.
In February 1980, state police, in executing a search warrant on the premises of M. & S. Salvage, discovered a license plate, issued to Marsha Reed for the same truck. A computer search indicated to the police that the truck had been stolen. A woman, who lived with an M. & S. Salvage employee, told the police that she saw M. & S. Salvage employees transferring parts from a blue pick-up truck to a red pick-up truck. Robert Smith, another employee, told the police that he had paid the appellant $300.00 for a frame and running gear on which he had placed his blue cab. Smith never received a certificate of title from appellant for the frame. Subsequently, Smith sold the reconstructed truck to Shelton under the old blue truck's certificate of title. Police in Tennessee located Shelton's truck, and then discovered a concealed vehicle identification number on its frame. The number was F14 SCY 89 261; the same number on the frame of the truck appellant reported stolen from the K-Mart parking lot in South Bend.
Appellant argues that the trial court should have discharged him pursuant to the Interstate Agreement on Detainers (IAD) I.C. Sec. 35-33-10-4 because he was not tried within 120 days of his arrival in Fulton County. The pertinent sections of the statute are set forth here:
Art. 1--[It] is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.
Art. 4(c)--In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Art. 5(c)--If the appropriate authority shall refuse or fail to accept temporary custody of said person or in the event that an action on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article 3 or Article 4 hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
The record indicates that the Federal Penitentiary at Terre Haute transferred him to Fulton County on April 27, 1983. On May 4, 1983, on May 23, 1983, and on June 20, 1983, appellant filed separate motions alleging that his transfer to Fulton County was in violation of the IAD; he also requested a hearing on the matter. On June 27, 1983, the trial court set the trial date for September 13, 1983; which was beyond the requisite 120 day period. Appellant did not object to this trial setting. On June 29, 1983, he filed a Motion for Relief from Violations. In the motion he alleged violations of IAD Sec. 35-33-10-4, art. 5(d) and 5(h). These allegations related to appellant's care while in the custody of Fulton County and not to the 120 day limit. On July 15, 1983, the trial court in an order made the following ruling concerning appellant's previous IAD motions.
Despite this ruling's emphasis on appellant's failure to allege specific violations of the IAD, as of this ruling, we discern that appellant alleged one specific violation: that is that Fulton County violated article 5(d) and 5(h) of the IAD in regards to the type of care he was to receive while in their custody. However, it was not until July 26, 1983, that appellant made a general demand that trial be held within the time limits of the IAD. In a pretrial conference, on August 1, 1983, the court conducted an extensive hearing on the IAD, however, appellant did not reiterate his objection based on the time limit. Subsequently, the trial court reset the trial date from September 13, 1983, to September 19, 1983. Appellant did not object to this resetting. Between August 1, 1983, and August 29, 1983, appellant's actions indicated that he intended to proceed to trial on the date as reset i.e. he filed a motion in limine, a petition for subpoena, a petition for depositions upon oral examination, and a petition for production of documentary evidence. On August 29, 1983, he filed an Affidavit of Emergency, alleging that the 120 day period had passed and that the charges against him be dismissed.
A defendant applying for discharge pursuant to the Interstate Agreement on Detainers may be precluded from relief if he fails to object to a date beyond the requisite period at the time the date was set or during the remainder of the time limit. See Scrivener v. State (1982), Ind., 441 N.E.2d 954, 956; Pethtel v. State (1981), Ind.App., 427 N.E.2d 891.
Appellant claims all of his objections based on the IAD properly preserve the "120 day limit" issue for appeal. Appellant is incorrect. The relevant times when appellant should have objected were on June 27, 1983, the date the trial was set, and August 1, 1983, the date the trial was reset. However, appellant did not object at these times to the setting or resetting of the trial date beyond the requisite 120 day period. Appellant's Affidavit of Emergency on August 29, 1983, alleging the expiration of the 120 day period did not qualify as a timely objection to preserve his rights under the IAD.
Appellant argues that the trial court erred in refusing his tendered "circumstantial evidence" instruction.
"Instructions upon circumstantial evidence are not required to be given where the evidence of guilt is direct and positive or where some is direct and some is circumstantial." Hitch v. State (1972), 259 Ind. 1, 12, 284 N.E.2d 783, 789.
Faught v. State (1979), 271 Ind. 153, 390 N.E.2d 1011, 1017.
Here, there is direct evidence that appellant negotiated the purchase of the truck for $1300, that he negotiated a $4,000 loan with the truck as collateral, that he reported the truck as stolen, and that he sold the truck's frame. The existence of this direct evidence permitted the case to be submitted to the jury without a discrete instruction on how to deal with a case resting solely upon circumstantial evidence.
Appellant argues that the trial court erred in giving a "greatest weight of the evidence" instruction in a criminal case. Appellant objected to the instruction at trial. He contends that the instruction is similar to a "preponderance of the evidence" instruction in a civil case and that, as a result, the instruction necessarily confused the jury as to the "proof beyond a reasonable doubt" standard.
The challenged instruction ...
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