Rutledge v. State, 380S69

Decision Date24 July 1981
Docket NumberNo. 380S69,380S69
PartiesWilliam C. RUTLEDGE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Linley E. Pearson (on rehearing), Attys. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Rutledge was convicted in a trial by jury of theft, Ind.Code § 35-43-4-2, and determined to be an habitual offender, Ind.Code § 35-50-2-8, and was sentenced to consecutive terms of four years and thirty years. This direct appeal from those convictions presents the following issues:

1. Whether it was error to deny a motion for discharge for delay in trial 2. Whether error occurred when the State was permitted to introduce evidence resulting from a search and seizure;

3. Whether it was error to give State's Instruction No. 6; and

4. Whether it was error to refuse to give appellant's Tendered Instructions 1, 3, 5 and several defining lesser and included offenses of theft.

I.

Appellant filed three motions for early trial within seventy calendar days pursuant to Ind.R.Crim.P. 4(B), the first on November 2, 1978, the second on January 17, 1979, and the third on May 10, 1979. The trial court denied a motion to discharge filed on July 19, 1979. The trial commenced on September 4, 1979. The case law governing these motions requires that the movant maintain a position which is reasonably consistent with the request that he has made. Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552. Failure at any point to do so constitutes an abandonment of the request, and the motion by which it was made ceases to have legal viability.

Under the circumstances of this case then, when on January 17, 1979, appellant requested that he be tried within the next succeeding seventy-day period, rather than discharged upon the basis of his first motion, he is deemed to have abandoned that first motion. Likewise, when on May 10, 1979, appellant asked the trial court by his motion for early trial, to put him to trial within the next succeeding seventy-day period, rather than to discharge him upon the basis of his second motion, he is deemed to have abandoned the second motion. Therefore, the only issue raised by appellant's motion for discharge filed on July 10, 1979, was whether or not he was entitled to discharge because he had not been brought to trial within seventy calendar days after filing the third motion on May 10, 1979.

The record reflects that on June 22, 1979, the trial court set the case for trial to commence on September 4, 1979. On June 22, 1979, there was yet time to put appellant to trial within the seventy day period commenced by the May motion. The September 4 trial date was clearly beyond that period. At that point he took no affirmative action to call attention to the fact that a trial in September would result in his being denied that which he had requested, namely, a trial within the seventy-day period next succeeding the filing of the May motion. By not doing so, he is deemed to have abandoned the May motion, and there was no denial of his rule right upon which the trial court might properly have granted his discharge.

II.

At 5:00 a.m. on October 14, 1978, a Rush County deputy sheriff in a patrol car stopped the pickup truck being driven by appellant and also occupied by a passenger. Appellant jumped out of the truck and walked towards the patrol car. The officer also alighted and asked appellant where he was going at that time of the morning with the riding law mower which was sitting in the bed of the truck. Appellant said that he had been paid $50.00 by a man named Floyd Robertson to haul it from Connersville to Knightstown. The officer asked for his driver's license, and noticed that the passenger was fumbling in the glove compartment and under the seat. He ordered the man out and patted down both men for weapons. He then radioed Rushville for a driver's license check.

While seated in the patrol car, the officer received a radio response on the driver's license and a report that a riding mower like the one which was then sitting in the truck had been seen earlier in the evening in front of an implement store in Rushville. Within a few minutes the officer received another report that the mower was no longer there. Appellant, overhearing this talk then stated that he had gotten the mower from that implement store. Within a short time, the officer received another report that the owner of the implement store had been contacted and that he said no one had been given authority to remove the mower Appellant contends that the police action in stopping his truck was an unreasonable seizure in violation of the Fourth and Fourteenth Amendments and Art. I, § 11, of the Indiana Constitution, and that evidence flowing from it and his attendant detention should have been excluded at trial. The stopping of a single car upon the street constitutes a physical and psychological intrusion upon the occupants of it, interferes with freedom of movement, causes inconvenience and consumes time. The show of authority is unsettling and creates substantial anxiety. Delaware v. Prouse, (1979) 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Even a brief stop of an automobile and detention of its occupants constitutes a seizure, and is unreasonable in contravention of the Fourth Amendment in the absence of specific articulable facts which reasonably support an inference of a violation of the laws respecting use of the vehicle. United States v. Brignoni-Ponce, (1975) 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; State v. Smithers, (1971) 256 Ind. 512, 269 N.E.2d 874. In order to determine the reasonableness of such a warrantless intrusion, the court must examine the facts known to the officer at the time he stopped the car, and determine from those specifically articulable facts, and reasonable inferences from them, whether they reasonably warrant a suspicion of unlawful conduct. United States v. Brignoni-Ponce, supra; Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208.

and that it should still be at the store. The officer then arrested appellant and his companion for theft of the mower.

In this case, the pickup truck was observed by the deputy sheriff at 5:00 in the morning, when it was still dark, proceeding down a county road at a speed which was uncustomarily slow for the condition of the particular road. He was very familiar with the vehicles and residents along this road since he lived nearby and travelled the road three or four times a day. The truck was proceeding from the direction of Rushville, the county seat, but this stretch of road did not connect Rushville directly with any neighboring community. He inferred that this truck was "strange" to the area. In the back of the truck he could see a riding mower which was shiny and he inferred that it was brand new and unused. At this point he decided to follow the truck, and as he did so, he noted the license plate number and radioed it in to determine if it was registered to the truck, and the answer came swiftly back, "not on file". The deputy had a vague recollection of reports of recent mower thefts. He also recalled a report received much earlier the same evening of a girl jumping from a truck in Rushville or Glenwood, and the truck was reported heading in the same direction. Based upon these facts and inferences, the deputy decided to stop the truck.

In doing so, it should be noted that the deputy was not investigating any specific recent crime involving the theft of a mower. He knew of no such crime. Furthermore, the truck was being driven in a lawful manner at all times.

In Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673, we upheld as constitutional the stop of a car by the Detroit police on the basis that it had out-of-state plates and was being driven erratically, and the police inferred that the driver might be in trouble. In Moyer v. State, (1975) Ind.App., 379 N.E.2d 1036, the Dayton police noticed a vehicle with the license plate attached with only one screw and the rear window obstructed so as to limit vision into or out of the car. As the police car approached it, it slowed from a legal 55 to 30, and when the police drew alongside it in the passing lane it slowed to 20. The Third District Court of Appeals found justification in these facts for the stop of the car.

In Terry v. Ohio, supra, Officer McFadden, at 2:30 in the afternoon in downtown Cleveland, watched two men for ten minutes make "elaborately casual and oft-repeated reconnaissance" of a store window. The Supreme Court deemed such actions sufficient to engender belief that the two men were contemplating a day-light robbery.

The observations made by the Rush County deputy compare favorably with those made by Officer McFadden, and those involved in Chatman and Moyer. The road upon which this pickup was travelling at 5:00 a.m. was not one of the beaten paths between communities, but a back county road. The truck was proceeding in an overly cautious manner, reasonably indicative of unfamiliarity with the geography of the area and the manner in which the truck would handle the load. Taking it easy in this fashion was also consistent with a desire to locate a particular place. The shininess of the mower bespeaks recent acquisition. It could not be verified through a computer record check that the license was registered to the truck. The observations made and reasonable inferences therefrom, would, we believe, reasonably warrant a suspicion that a postlude to the theft of the mower was occurring. The initial stop of the pickup truck was therefore consistent with the Fourth Amendment and the Indiana Constitution, and as such did not serve to render evidence subsequently discovered inadmissible at trial, or unusable for...

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