Reynolds v. State, No. 64A03-8806-PC-185

Docket NºNo. 64A03-8806-PC-185
Citation536 N.E.2d 541
Case DateApril 10, 1989
CourtCourt of Appeals of Indiana

Page 541

536 N.E.2d 541
Garry REYNOLDS, Appellant (Petitioner Below),
v.
STATE of Indiana, Appellee (Respondent Below).
No. 64A03-8806-PC-185.
Court of Appeals of Indiana,
Third District.
April 10, 1989.
Transfer Denied July 13, 1989.

Page 542

Terry E. Johnston, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Petitioner-appellant Garry Reynolds appeals from the denial of his petition for post-conviction relief. The facts relevant to Reynolds' appeal are summarized below.

Page 543

On April 16, 1982, Reynolds was convicted of murder following a trial by jury. Reynolds filed a direct appeal in which he questioned the propriety of the trial court's ex parte communication with the jury, the admission into evidence of photographs of the deceased victim, the refusal to give tendered instructions and the sufficiency of the evidence. Reynolds' conviction was upheld by the Indiana Supreme Court. Reynolds v. State (1984), Ind., 460 N.E.2d 506.

Reynolds filed a petition for post-conviction relief on January 6, 1987, and the petition was subsequently amended. Following a hearing on the amended petition, the court entered an order denying post-conviction relief. This appeal ensued.

Consolidated and restated, the issues presented for this Court's review are whether the trial court erroneously entered a judgment of conviction on an amended information which altered the theory of prosecution and whether Reynolds was denied effective assistance of counsel during the criminal proceedings. This Court observes that both issues were available to Reynolds on direct appeal.

Issues which could have been raised by an appellant in a direct appeal may not be asserted later as grounds for post-conviction relief. Beavers v. State (1987), Ind., 512 N.E.2d 1106, 1108. Therefore, absent a demonstration of fundamental error, the issues presented by Reynolds are waived. Barker v. State (1987), Ind., 508 N.E.2d 795, 797.

The first error raised by Reynolds concerns the amendment of the charging information by the State. In the original information, filed on October 19, 1981, Reynolds was charged with knowingly or intentionally killing Mark R. Coombs "by shooting at and against the body of the said Mark R. Coombs with a certain gun loaded with gun powder and metal bullets." On March 9, 1982, the information was amended to state that Reynolds "kill[ed] another human being, to wit: Mark R. Coombs ... while committing robbery, to wit: by knowingly or intentionally taking United States currency from Mark R. Coombs by using force."

Reynolds contends that in permitting the amendment, the trial court violated subsection (e) of IND.CODE Sec. 35-3.1-1-5 (repealed and replaced by IND.CODE Sec. 35-34-1-5, effective September 1, 1982). That statute provided:

"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 offense charged...." Id.

An amendment which changes the charged offense in an information from murder to felony murder does alter the theory of the prosecution. If Reynolds had interposed an objection to the amendment, the trial court would have been required to disallow the amended information. See Abner v. State (1986), Ind., 497 N.E.2d 550 (IND.CODE Sec. 35-3.1-1-5 does not contemplate exercise of discretion by trial court). Yet Reynolds neither objected at trial nor raised the issue of the amended information on direct appeal. The question brought to this Court, then, is not whether the trial court committed reversible error when it allowed the State to amend the information, but whether the error was fundamental.

Fundamental error has been variously described as a failure to meet the requirements of due process of law, gross error which offends the concept of criminal justice, and the denial of fundamental due process. Nelson v. State (1980), 274 Ind. 218, 219, 409 N.E.2d 637, 638. To rise to the level of fundamental error, an error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm must be substantial and appear clearly and prospectively. Id. at 220, 409 N.E.2d at 638.

The accomplishment of a change in charges by amendment, although in contravention of IND.CODE Sec. 35-3.1-1-5, did not constitute fundamental error. The State could have achieved the same result by dismissing the information and refiling the charges; that strategy would not have

Page 544

been proscribed by the statute of limitations, IND.CODE Sec. 35-41-4-2, or the speedy trial rule, Ind. Rules of Procedure, Criminal Rule 4....

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9 practice notes
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2007
    ...1264, 1268 (Ind.1987) "[T]he decision whether to utilize exculpatory evidence ... is a matter of trial strategy." Reynolds v. State, 536 N.E.2d 541, 545 (Ind.Ct.App.1989), trans. Here, Fisher's counsel both cross-examined the witnesses against Fisher and presented evidence in his defense. W......
  • Ried v. State, No. 10A04-9109-CR-300
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1993
    ...and the harm or potential for harm must must be substantial and appear clearly and prospectively. Reynolds v. State (1989), Ind.App., 536 N.E.2d 541, 543 trans. denied. Fundamental error is the exception to the general rule requiring objection to be made at trial to preserve error for appea......
  • Jeffers v. State, No. 45A05-9202-CR-50
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1992
    ...the victim's original story unduly prejudiced the defendant such that admission of the cumulative testimony was an abuse of discretion. 536 N.E.2d at 541. In light of Stamps, which the Modesitt court did not directly address, and Stone, which it relied upon, we do not read Modesitt as requi......
  • Davis v. State, No. 58A01-9807-CR-255.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 23, 1999
    ...Hart upheld the amendment of the charges because the substantial rights of the defendant had not been prejudiced. In Reynolds v. State, 536 N.E.2d 541, 543-44, (Ind.Ct.App.1989), trans. denied, this court, while declaring it error to permit an amendment to change the theory of the prosecuti......
  • Request a trial to view additional results
9 cases
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2007
    ...1264, 1268 (Ind.1987) "[T]he decision whether to utilize exculpatory evidence ... is a matter of trial strategy." Reynolds v. State, 536 N.E.2d 541, 545 (Ind.Ct.App.1989), trans. Here, Fisher's counsel both cross-examined the witnesses against Fisher and presented evidence in his defense. W......
  • Ried v. State, No. 10A04-9109-CR-300
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1993
    ...and the harm or potential for harm must must be substantial and appear clearly and prospectively. Reynolds v. State (1989), Ind.App., 536 N.E.2d 541, 543 trans. denied. Fundamental error is the exception to the general rule requiring objection to be made at trial to preserve error for appea......
  • Jeffers v. State, No. 45A05-9202-CR-50
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 1992
    ...the victim's original story unduly prejudiced the defendant such that admission of the cumulative testimony was an abuse of discretion. 536 N.E.2d at 541. In light of Stamps, which the Modesitt court did not directly address, and Stone, which it relied upon, we do not read Modesitt as requi......
  • Davis v. State, No. 58A01-9807-CR-255.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 23, 1999
    ...Hart upheld the amendment of the charges because the substantial rights of the defendant had not been prejudiced. In Reynolds v. State, 536 N.E.2d 541, 543-44, (Ind.Ct.App.1989), trans. denied, this court, while declaring it error to permit an amendment to change the theory of the prosecuti......
  • Request a trial to view additional results

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