Riley v. State, 684S215

Docket NºNo. 684S215
Citation506 N.E.2d 476
Case DateApril 16, 1987
CourtSupreme Court of Indiana

Page 476

506 N.E.2d 476
James E. RILEY, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 684S215.
Supreme Court of Indiana.
April 16, 1987.

Page 477

Diane McNeal, Appellate Public Defender's Office, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

James E. Riley, defendant, appeals his two convictions, following jury trial, of robbery 1, a class A felony. The issues sought to be presented are: 1) amendment of information, 2) hearsay evidence, 3) admissibility of confessions, 4) jury instructions, and 5) sufficiency of evidence.

Page 478

Issue I

The original information filed May 19, 1983, charged defendant with two counts of robbery, a class A felony, each of which included the allegation that defendant caused "serious bodily injury." Four days before the commencement of jury trial, the State moved to amend each count of the information by striking the word "serious" from the phrase "serious bodily injury." The trial court granted the motion on December 5, 1983, immediately prior to the commencement of the trial. Under the statutory language in force at the time, the offense of robbery was defined by Ind.Code Sec. 35-42-5-1 as follows:

A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) By using or threatening the use of force on any person; or

(2) By putting any person in fear; commits robbery, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a class A felony if it results in either bodily injury or serious bodily injury to any other person. 2

Defendant contends that the deletion of the word "serious" affected the substance, not merely the form, of the charge, and resulted in prejudice to the substantial rights of the defendant, in violation of Ind.Code Sec. 35-34-1-5. This statutory provision authorizes the amendment of an information under specified procedures and limitations. In pertinent part, it permits amendment "at any time because of any immaterial defect, including * * * (9) any other defect which does not prejudice the substantial rights of the defendant." Section (c) of the statute further provides:

Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.

Section (d) further provides that upon permitting such amendment, the trial court must, if requested by the defendant, "order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense."

Defendant argues that he came to trial prepared to show that the victim had not sustained "serious" bodily injury, but was not prepared to argue the absence of any bodily injury. Defendant claims that the amendment of the information on the day of trial substantially prejudiced his rights to an adequate and thorough defense.

The defendant did not avail himself of the statutory continuance available to allow "adequate opportunity to prepare his defense." He may not now complain.

Issue II

Defendant contends that the trial court committed reversible error when it permitted testimony from the victim that during the robbery, he heard "someone come up from behind me and told me 'this is pay-back for putting my brother in jail.' " Defendant immediately objected on grounds that the testimony was irrelevant, immaterial, hearsay, and lacks foundation. In response, the State informed the court that the defendant, in a prior statement, identified one Charles Steele as one of the other persons participating with the defendant in the incident. Charles Steele is the brother of John Steele against whom the victim had testified regarding a prior burglary, as a result of which John Steele was convicted and sentenced. Defendant's statement, later introduced in evidence, identified Charles Steele as one of the defendant's companions in the robbery. On appeal, defendant's sole resulting argument is that the response was inadmissible hearsay. The trial court expressly noted that the

Page 479

statement was admissible under the res gestae exception to the hearsay rule.

The term "res gestae " is used in two separate and distinguishable contexts. See generally, McCormick, Evidence Sec. 288, pp. 835-836 (1984); VI Wigmore, Evidence Sec. 1745, pp. 191-193 (Chadbourn ed. 1976). As an exception to the hearsay rule, res gestae refers to spontaneous or excited utterances. See, Spears v. State (1980), 272 Ind. 634, 401 N.E.2d 331, rehearing granted on other grounds, 272 Ind. 647, 403 N.E.2d 828; Fed.R.Evid. 803(2). Separate and apart from excited utterances, the term has also been applied to statements and conduct contemporaneous with an incident in question. See, Blankenship v. State (1984), Ind., 462 N.E.2d 1311; Edwards v. State (1984), Ind., 466 N.E.2d 452. In this latter usage, res gestae does not apply to hearsay assertions which nevertheless are admissible as excited utterances. Rather, it refers to statements which are not hearsay at all because they are not offered to prove the truth of the assertions contained therein, but rather for the purpose of completing the story of the incident and its immediate context. Arnold v. State (1984), Ind., ...

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19 cases
  • Mauricio v. State, 02A03-9511-CR-383
    • United States
    • Indiana Court of Appeals of Indiana
    • August 4, 1997
    ...Page 1335 instruction and did not decide the issue upon the concept of waiver. To the same effect is Riley v. State (1987) Ind., 506 N.E.2d 476, wherein our Supreme Court noted the waiver principle but proceeded to hold that the tendered lesser offense instructions were correctly The waiver......
  • Norwood v. State, 27A02-9509-CR-530
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    ...if any, made thereto." Failure to comply with the requirements of Rule 8.3(A)(7) results in waiver of the issue. Riley v. State, 506 N.E.2d 476 (Ind.1987); Lahr v. State, 640 N.E.2d 756 (Ind.Ct.App.1994), trans. denied. Even were it not waived, however, the argument is without When called u......
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    ...that a knowing and intelligent waiver of rights occurred or that a resulting statement was made voluntarily. Riley v. State (1987), Ind., 506 N.E.2d 476, At the hearing on the motion to suppress, Houchin presented evidence that he had smoked two marijuana cigarettes and had ingested LSD, Li......
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