Sacks v. State, No. 2--975A237

Docket NºNo. 2--975A237
Citation360 N.E.2d 21, 172 Ind.App. 185
Case DateFebruary 15, 1977
CourtCourt of Appeals of Indiana

Page 21

360 N.E.2d 21
172 Ind.App. 185
Jerome SACKS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2--975A237.
Court of Appeals of Indiana, Second District.
Feb. 15, 1977.

[172 Ind.App. 186]

Page 22

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Jerome Sacks (Sacks) appeals a judgment convicting him of Theft by Receiving Stolen Property, 1 claiming that the trial court committed reversible error by (1) denying his motion to dismiss the grand jury indictment, (2) denying his oral motion for a continuance on the day of trial, (3) denying his motion for a mistrial based upon juror knowledge of media publicity, and (4) denying his motion for judgment on the evidence.

We affirm.

FACTS

The facts most favorable to the State and in support of the judgment are:

[172 Ind.App. 187] Sacks was previously tried and convicted on this same charge in Marion Criminal Court, Division One . . . a judgment which was reversed by District Three of this Court on August 27, 1973, because of a faulty indictment. 2

The State then refiled the action in Marion Criminal Court, Division Four, on December 7, 1973.

On December 11, 1973, Sacks' motion to dismiss the indictment due to a defective grand jury proceeding was overruled.

On the morning of trial, February 10, 1975, Sacks made an oral motion for a continuance to secure the presence of an absent witness (a former attorney who moved to Florida).

The prosecuting attorney offered to stipulate the testimony this absent witness had given in Sacks' first trial, but this offer was refused by Sacks.

After observing the case had been pending for trial longer than usual (December 7, 1973 to February 10, 1975), the trial had

Page 23

been 'set and reset on two or three prior occasions,' and 'the State (had) agreed to stipulate the absent witness' testimony from the prior trial,' the trial court overruled the motion.

Evidence was then produced revealing that Sacks desired a certain model remote control television. Being aware that one James Smith (Smith) had a history of acquiring such items with bad checks, 3 Sacks arranged with Smith (who testified at length) to acquire the television for him. In Smith's presence, Sacks called several appliance stores, finally locating the desired model at Sharper & Gardner.

Because Smith had earlier obtained appliances from another branch of Sharper & Gardner with a bad check, Sacks gave him One Hundred ($100.00) Dollars in cash to accompany a [172 Ind.App. 188] bad check for the difference in the purchase price. Smith then bought the desired television from Sharper & Gardner for Four Hundred Fifty-Eight and 49/100 ($458.49) Dollars, giving One Hundred ($100.00) Dollars cash and a bad check for the balance.

After the purchase, Smith reached Sacks by telephone at Sacks' store and was told to bring the set to the store (which was closed) and someone would let him in. At the store Sacks tried out the set, gave Smith Two Hundred ($200.00) Dollars, and had Smith fill out a pawn card. Smith used the name Donald Peterson on the pawn card, returned it to Sacks, and observed Sacks read the card.

The television set was ultimately recovered in a bedroom in Sacks' residence.

Pertinent facts relating to an article on Sacks' trial appearing in the Indianapolis Star the morning of the second day of trial which several jurors read are contained in the discussion of Issue Three.

ISSUES

Sacks presents four issues for our resolution here: 4

ISSUE ONE: Did the trial court properly deny Sacks' motion to dismiss the indictment?

ISSUE TWO: Did the trial court abuse its discretion in denying Sacks' oral motion for a continuance on the morning of the trial to secure the presence of an absent witness?

ISSUE THREE: Did the trial court abuse its discretion in denying Sacks' motion for a mistrial due to juror knowledge of media publicity?

[172 Ind.App. 189] ISSUE FOUR: Did the trial court properly deny Sacks' motion for judgment on the evidence and was there sufficient evidence of probative value to sustain Sacks' conviction of theft by obtaining control over stolen property? 5

PARTIES' CONTENTIONS:

As to issue one, Sacks contends that when the affidavit was filed in Division Four, while the previous action was still pending

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in Division One, his due process rights were violated because he was forced to post additional bond and the State could 'forum shop' . . . all in violation of Burns section 9--1130.

The State argues that Sacks' motion to dismiss the indictment was based upon an allegation of a defective grand jury proceeding because the same cause (reversed) was pending in Division One and there are no such grounds for dismissal of an indictment under the statute regulating grand juries; 6 that Sacks' reliance upon Burns section 9--1130 was misplaced due to its repeal prior to Sacks' motion; and that Sacks' due process argument was never raised in his Motion to Correct Errors.

Concerning Issue Two, Sacks maintains he should have been granted a continuance to secure the presence of an absent witness, his attorney in a previous trial whose testimony and assistance would have been invaluable, and that [172 Ind.App. 190] no written motion for such a continuance should be required as a prosecuting attorney has a right to obtain a like continuance at trial by oral motion.

The State counters that the rights of a prosecuting attorney are governed by a separate statute and that Indiana Code section 35--1--26--1 requires any motion by a defendant for a continuance to be in writing and be supported by specific reasons.

In regard to Issue Three, Sacks asserts that the newspaper article about his trial which came to several jurors' attention following the first day of trial created incurable prejudice.

The State concludes there was no prejudice because the trial court examined the jury as a whole--and the jurors individually--in accordance with Indiana law and found no prejudice.

In Issue Four, Sacks attempts to avoid criminal liability by claiming to have valid title to the television set through a Uniform Commercial Code title theory.

The State argues that Sacks' involvement in the fraudulent scheme precluded him from acquiring valid title.

DECISION
ISSUE ONE

CONCLUSION--Sacks' Motion To Correct Errors is not specific enough to present the claimed error of denying his motion to dismiss the indictment prior to trial.

Sacks' Motion to Correct Errors is so scanty on this issue as to be a nullity. It recites, '1. That the Court erred in denying the motion to dismiss filed on behalf of the defendant.' The attached memorandum makes no reference to this issue.

The Motion To Correct Errors is required by Trial Rule 59(B) to 'be specific rather than general, and shall be accompanied[172 Ind.App. 191] by a statement of the facts and grounds upon which errors are based.' Further emphasis to the requirement of specificity as to each error relied upon is provided by Trial Rule 59(G) which states in part:

(S)uch motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion.

The requirement of specificity of the facts and grounds upon which errors are based has been often stated in recent case law. See, e.g., Spivey v. State (1971), 257 Ind. 257, 274 N.E.2d 227; Bennett v. State (1973), Ind.App., 304 N.E.2d 827; State v. Hladik (1973), Ind.App., 302 N.E.2d 544; Farley v. Farley (1973), Ind.App., 300 N.E.2d 375; Daben Realty Co. v. Stewart (1972), 155 Ind.App. 39, 290 N.E.2d 809; Matthew v. State (1972), 154 Ind.App. 182, 289 N.E.2d 336; Ostric v. St. Mary's College (1972), 153 Ind.App. 616, 288 N.E.2d 565; Indiana Dep't of State Revenue v. Frank Purcell Walnut Lumber Co. (1972), 152 Ind.App. 122, 282 N.E.2d 336.

In effect Sacks' Motion To Correct Errors attempts to raise error as to the denial of a motion to dismiss for the first time on appeal. Such a casual reference without separately specifying the grounds therefor specifically constitutes a waiver of this question. Spivey v. State, supra; Bennett v. State, supra; Matthew v. State, supra.

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Even had Sacks properly raised a question, the State's arguments would prevail. The alleged defectiveness of the grand jury proceeding does not come within the reasons enumerated in Indiana Code section 35--3.1--1--7 for dismissal of an indictment. 7 We also note that the motion to dismiss and record [172 Ind.App. 192] contain no affidavit alleging the facts to support the motion to dismiss the indictment as required by Indiana Code section 35--3.1--1--8(a) . . . a fatal omission. 8

ISSUE TWO

CONCLUSION--The trial court did not abuse its discretion in denying Sacks' oral motion for a continuance on the morning of trial to secure the presence of an absent witness.

Sacks concedes, as he must, that his oral motion for a continuance to secure the presence of his former legal counsel as a witness did not comply with the requirements of Indiana Code section 35--1--26--1 9 which requires the filing of a motion and accompanying affidavit setting forth certain information as a prerequisite for a continuance. He relies on Kleinrichert v. State 10 which upheld the right of the prosecuting attorney [172 Ind.App. 193] to obtain a continuance on the morning of trial by an oral motion due to the absence of a material witness.

The decision in Kleinrichert is of no benefit to Sacks because it was based on a separate statute by which prosecuting attorneys may obtain continuances on oral motions. 11 Judge Staton's comments in Kleinrichert are particularly pertinent to this case:

It should be noted that the defendant's statutory motion for continuance '. . . can be made only on affidavit . . .' which...

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17 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...260 Ind. 548, 297 N.E.2d 801, reveal two categories of publicity with which we are concerned. See also Sacks v. State, (1977) Ind.App., 360 N.E.2d 21, 27-28. In Lindsey a newspaper article reported that the accused was an escapee from a mental institution to which he had been [268 Ind. 219]......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...a denial will not be reversed on appeal. Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of discretion the record must reveal that the appellant was prejudiced b......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...(1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Kelly v. Bank of Reynolds (1976), Ind.App., 358 N.E.2d 146; Indiana State Highway Comm. v. Thomas (1976), Ind.App., 346 N.E.2d 252; Bd. of Com......
  • Heinrich v. Titus-Will Sales, Inc., TITUS-WILL
    • United States
    • Court of Appeals of Washington
    • February 24, 1994
    ...not pay for or not deliver the goods. 2 Correria v. Orlando Bank & Trust Co., 235 So.2d 20, 25 (Fla.Dist.Ct.App.1970); Sacks v. State, 172 Ind.App. 185, 360 N.E.2d 21, 28 (1977); Canterra Petroleum, Inc. v. Western Drilling & Mining Supply, 418 N.W.2d 267, 273-74 (N.D.1987); Apeco Corp. v. ......
  • Request a trial to view additional results
17 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...260 Ind. 548, 297 N.E.2d 801, reveal two categories of publicity with which we are concerned. See also Sacks v. State, (1977) Ind.App., 360 N.E.2d 21, 27-28. In Lindsey a newspaper article reported that the accused was an escapee from a mental institution to which he had been [268 Ind. 219]......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...a denial will not be reversed on appeal. Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of discretion the record must reveal that the appellant was prejudiced b......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...(1971), 257 Ind. 257, 274 N.E.2d 227; Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 203; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Kelly v. Bank of Reynolds (1976), Ind.App., 358 N.E.2d 146; Indiana State Highway Comm. v. Thomas (1976), Ind.App., 346 N.E.2d 252; Bd. of Com......
  • Heinrich v. Titus-Will Sales, Inc., TITUS-WILL
    • United States
    • Court of Appeals of Washington
    • February 24, 1994
    ...not pay for or not deliver the goods. 2 Correria v. Orlando Bank & Trust Co., 235 So.2d 20, 25 (Fla.Dist.Ct.App.1970); Sacks v. State, 172 Ind.App. 185, 360 N.E.2d 21, 28 (1977); Canterra Petroleum, Inc. v. Western Drilling & Mining Supply, 418 N.W.2d 267, 273-74 (N.D.1987); Apeco Corp. v. ......
  • Request a trial to view additional results

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