Russell v. State

Citation487 N.E.2d 136
Decision Date02 January 1986
Docket NumberNo. 184S8,184S8
PartiesMichael G. RUSSELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Michael Russell was found guilty by a jury of Robbery, a Class B felony and determined to be an habitual offender. He was sentenced to ten years for the underlying offense, to which was added an additional thirty years. This appeal followed.

The evidence most favorable to the jury's verdict was that in the early morning hours of May 18, 1983, one Harold Raney was out for a walk in downtown Indianapolis when appellant and a female companion approached him. Appellant pointed a gun at the victim's head and demanded money. Raney complied and the two departed. Within moments, Raney flagged down Officer Joseph Zeimetz, told him what had happened, and gave him a brief description. Zeimetz drove off in the pursuit and found Russell and his friend nearby. He questioned them briefly, concluded that there was inadequate basis for an arrest, and allowed them to leave.

After searching the immediate area of the interrogation, Officer Zeimetz discovered a discarded gun and decided that an arrest was now justified. He drove to what he believed was appellant's destination and took him into custody. Returning to the location of the crime, Zeimetz presented appellant to his victim, who made an on site identification.

Appellant raises five issues:

1. Whether the trial court erred in denying his motion to dismiss the habitual offender charge.

2. Whether certain exhibits were properly admitted.

3. Whether the trial court erred by denying a request for continuance of the habitual offender proceeding.

4. Whether an instruction defining serious bodily injury was wrongly given.

5. Whether the verdict was supported by sufficient evidence.

On the first of these questions, appellant notes that six days before his trial was scheduled, the prosecutor filed an habitual offender allegation. The trial was subsequently continued and the cause dismissed and transferred to another division of the Marion Superior Court. Appellant appears to argue that this was a violation of Ind.Code Sec. 35-34-1-5, which permits amendments of both form and substance up to thirty days before the omnibus date and provides for amendments in form at any time if they do not prejudice the substantial rights of the defendant.

Counsel urges that amending an habitual offender information cannot be fairly called an "amendment in form" and that his motion to dismiss should have been granted. Under nearly identical provisions of the Code, this Court held that the addition of an habitual offender charge could be permitted at any time so long as it does not prejudice the substantial rights of the defendant. Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70. In Gilmore, Justice Hunter noted that an habitual offender charge does not state a new crime but relates only to the penalty to be imposed in the event that the defendant is found guilty on the underlying offense. While appellant is correct in noting that a charge carrying the potential of such a substantial penalty would not normally be labelled a matter of form, we do not understand the recent amendments to the Code to indicate a legislative intent to overrule the lengthy line of cases of which Gilmore is a part. Accordingly, since appellant has not presented any explanation of the manner in which he was prejudiced by the timing of the additional charge, his request that we vacate his conviction on these grounds is denied.

Appellant objected at trial to State's Exhibits 6 and 8, which were copies of records from the Department of Corrections showing his...

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7 cases
  • Singleton v. State, 45A03-0712-PC-551.
    • United States
    • Court of Appeals of Indiana
    • June 26, 2008
    ...than a matter of substance, thus removing such an amendment from the time requirements of Indiana Code § 35-34-1-5(b). Russell v. State, 487 N.E.2d 136, 137-38 (Ind.1986); see also Beesley, 533 N.E.2d at 112. Singleton's trial counsel did not perform deficiently in failing to object to the ......
  • Baxter v. State
    • United States
    • Supreme Court of Indiana
    • April 25, 1988
    ...rights of the defendant. A showing of such prejudice is required before a motion for continuance must be granted. Russell v. State (1986), Ind., 487 N.E.2d 136. Baxter received notice of the two prior convictions through discovery provided by the State in June 1984. The State was unable to ......
  • Miller v. State
    • United States
    • Supreme Court of Indiana
    • December 12, 1990
    ...allegation may be filed at any time so long as it does not prejudice the substantial rights of the defendant, citing Russell v. State (1986), Ind., 487 N.E.2d 136. He maintains he was prejudiced here by being unable to investigate an alleged Michigan conviction or to prepare to meet the Sta......
  • Daniel v. State
    • United States
    • Supreme Court of Indiana
    • August 15, 1988
    ...that it is filed outside of the time specified in Ind. Code 35-34-1-5(b)(1), must demonstrate that he was prejudiced. Russell v. State (1986), Ind., 487 N.E.2d 136, 137-38. Daniel claims only that his rights to proper notice and preparation were violated when the State filed its Notice of F......
  • Request a trial to view additional results

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