Richardson v. State
| Decision Date | 11 December 1974 |
| Docket Number | No. 3--1073A131,3--1073A131 |
| Parties | Sidney Charles RICHARDSON, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Foster, Stanish & Kouris, Hammond, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellee.
The defendant, Sidney Charles Richardson, and two others, Shreve and Wells, were jointly charged with first degree burglary. At arraignment, Shreve's motion for a separate trial was granted. Trial for the remaining defendants was set to commence March 20. On March 15, Wells moved for a list of prosecution witnesses and, also, moved for a continuance of his trial because he was also scheduled to go on trial in federal court on March 20. This continuance was granted, and on the 20th, Richardson was tried by jury and found guilty. At Richardson's trial, both Shreve and Wells testified for the state and each implicated Richardson as a principal. The appeal asserts five specifications of error.
It is first asserted that the court in granting Wells a continuance, in effect, determined that there would be separate trials. We agree. We, however, disagree with defendant's further proposition that the severance was harmful error where, as here, the defendant did not seek a continuance or make any objection to proceeding to trial. This same situation was before the court in Ware v. State (1963), 243 Ind. 639, 189 N.E.2d 704, cert. den., 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265. In that case our Supreme Court held that granting a continuance to one jointly charged defendant and proceeding to trial with the other clearly manifested a determination to try the defendants separately despite the lack of any petition for separate trials and the lack of a formal entry to that effect. The court held that such action did not constitute harmful error since the statute permits the court in its discretion and on its own motion to order separate trials, and there was no showing of an abuse of discretion. 1 Thereafter, in Turner v. State (1972), Ind., 280 N.E.2d 621, the court considered whether it was error for the trial court, on the day trial was to commence, to grant one jointly charged defendant a separate trial. The remaining defendant claimed prejudice because his defense was based on the assumption that he and the other defendant would be tried together. The court, however, rejected the asserted abuse of discretion since the remaining defendant did not seek a continuance when he learned of the separation.
Defendant next asserts it was improper for the court to sustain the prosecutor's objection when defendant asked his alibi witness on direct examination regarding where Wells resided: 'Where in relation to where (the victim) lived would would it be, in the same vicinity?' The objection was that it had not been established that the witness in fact knew where Wells lived. When the objection was sustained, counsel abandoned this line of inquiry. On appeal defendant advances no reason as to why or how he was prejudiced by the court's ruling. Indeed if the answer were important, the question could have been posed to Wells, himself, who testified for the state. To establish reversible error the appellant must demonstrate that he was harmed. Indiana Rules of Procedure, Trial Rule 61 and Appellate Rule 15(D); Patrons v. School City of Kendallville (1963), 244 Ind. 675, 194 N.E.2d 718.
It is next asserted that the testimony adduced at the trial was so inherently untrustworthy and improbable as to be insufficient to support a finding of guilty. In support of this contention defendant points to the admissions of both Wells and Shreve that they had committed numerous burglaries. In addition, he points to testimonial conflicts regarding the amount of money taken, whether the money was taken from a coat or a box, whether the outside door to the home was of screen or glass, and whether there were lights burning in the house at the time.
The question thus presented is whether there was any substantial evidence of probative value to support the verdict. Hash v. State (1973), Ind., 291 N.E.2d 367. The victim establish the corpus delicti. Shreve and Wells each admitted their participation and testified to that of the defendant. Neither their prior criminal activities nor the testimonial discrepancies regarding some of the details of the burglary rendered their testimony so incredible as to be without probative value. 2 Beyond this, the weight to be given their evidence and the determination of their credibility was for the jury. Melloh v. Gladis (1974), Ind., 309 N.E.2d 433; Powell v. State (1970), 254 Ind. 200, 258 N.E.2d 633.
Appellant also asserts, in this same vein, that the court should have instructed the jury regarding the credibility of the testimony of defendants Shreve and Wells. However, no such instruction was tendered to the court by the defendant, nor does the defendant on appeal assert precisely of what the instruction should have consisted. While Rule CR. 8(F) requires the court to instruct on the credibility of the witnesses and the manner of weighing the testimony, this was done by the court in its preliminary instruction No. 7 and its final instructions numbered 10, 11 and 12. These correctly instructed the jury generally in determining credibility and the weight to be accorded the evidence. Furthermore, in Turner v. State, supra, the Supreme Court disapproved the propriety of specifically instructing the jury to be cautious in their reception of accomplice testimony. There was no error in the court's instruction on credibility.
Lastly, appellant asserts that he was deprived of his right to competent counsel. From the record it appears that his trial counsel filed a notice of alibi, presented the alibi witnesses in defense, and vigorously cross-examined the state's witnesses. Indeed, on appeal no quarrel is taken with the conduct of the trial. Instead appellant's novel approach asserts that the public defender system, as employed in Lake County at the time of defendant's arrest and trial per se, excluded defendant from receiving competent counsel. In support of this contention the appellant, at the hearing on his motion to...
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Ray v. State
...of Lindsey is not correct we conclude the decision has been limited by Twyman, supra; Frazier, supra; and Langley; Richardson v. State (1974) 162 Ind.App. 386, 319 N.E.2d 644. In his P.C.R. 1 petition challenging the 1976 conviction, Wheeler also claimed he was entitled to relief because of......
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Satchell v. State, 70
... ... State, 293 Md. 97, 106-110, 442 A.2d 550 (1982) ... Another case relied on by the defendant Satchell merely held that granting a continuance to one of two jointly charged defendants, thereby effecting a severance, did not ... constitute an abuse of discretion. Richardson v. State, 162 Ind.App. 386, 319 N.E.2d 644 (1975). A Georgia case cited by the defendant held that where one of two jointly indicted defendants has already obtained a severance, the other retains his right to a [472 A.2d 459] speedy trial. Winkle v. State, 20 Ga. 666 (1856) ... ...
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