Serrano v. State
| Decision Date | 31 March 1977 |
| Docket Number | No. 176S7,176S7 |
| Parties | Isadore SERRANO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of murder in the perpetration of or attempt to perpetrate a rape and was sentenced to life imprisonment. His appeal to this Court presents the following three issues for our determination:
(1) Did the trial court err in overruling the defendant's Criminal Rule 4(B) motion for discharge?
(2) Did the trial court err in excluding evidence of the defendant's voluntary submission to a polygraph test and evidence of the results of such test?
(3) Was the evidence insufficient, as a matter of law, to support the guilty verdict?
We answer each of the foregoing questions in the negative and affirm the trial court's judgment.
Defendant was indicted on March 22, 1974. He was arrested and jailed on March 25, 1974. Thereafter, a series of pre-trial proceedings was initiated which continued until June 9, 1975. On that date, the day set for trial, the defendant filed a motion for discharge, pursuant to Criminal Rule 4(B), a motion for early trial having been theretofore filed on July 31, 1974. It is the defendant's contention that, after allowance for delays chargeable to him, the seventy day period allowed under Criminal Rule 4(B) expired on March 3, 1975. Assuming the correctness of this contention, the defendant, nevertheless, was not entitled to discharge.
We note that on January 14, 1975, the trial judge set the cause for trial on March 24th, a date twenty-one days beyond the Obviously counsel could not have objected on Jnuary 14th if he was not present and had no knowledge of the setting. Conspicuous by its absence, however, is any claim that he protested at his first opportunity as required by Buchanan v. State, (1975) Ind., 332 N.E.2d 213.
alleged critical date. For reasons not disclosed, the case did not proceed for trial on March 24th, but on April 2nd, the case was assigned for trial on June 9th. Counsel for [266 Ind. 128] Defendant does not address himself to the June 9th setting but contends that Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552, 555 and State ex rel. Wickliffe v. Judge of Criminal Court of Marion County, (1975) Ind., 328 N.E.2d 420 are not applicable because neither he nor the defendant was in court on January 14th when the March 24th date was selected, 'precluding any possibility that Appellant could object to the trial setting.' (Emphasis added).
State ex rel. Wickliffe v. Judge of Criminal Court of Marion County, supra, 328 N.E.2d 420 at 422.
There is nothing about the record in this case, other than the filing of the early trial motion, to indicate that the defendant's claim that he sought an early trial is bona fide. To the contrary, we find the following:
On January 19, 1975, he filed a motion for a change of judge. On March 21st he filed his first discovery motion. On April 2nd the case was rescheduled for trial on June 9th, and no timely objection was interposed. On April 4th, the State responded to the defendant's discovery motion and filed a discovery motion of its own--to which the defendant made no response until the date of trial.
The murder for which the defendant stands convicted was committed on December 19, 1972. On April 2, 1973, the defendant voluntarily submitted to polygraph test at the request of the East Chicago police authorities. The results of this test were favorable to the defendant but, in the opinion of the technician who administered it, they were inconclusive by reason of the defendant's apparent emotional and mental instability. The defendant, nevertheless, indicated an intention to offer the test results into evidence, and the court sustained the State's motion in limine and directed the defendant to refrain from offering the test results or evidence that a test had been given.
'* * * We have held that the degree of accuracy of these tests, currently rated at eighty per cent, is not sufficient to mandate their admission on the question of guilt or innocence. Zupp v. State, (1972) 258 Ind. 625, 283 N.E.2d 540, and Reid v. State, (1972) 259 Ind. 166, 285 N.E.2d 279, 'clearly establish the principle that absent some form of waiver or stipulation by the parties the results of polygraph examinations administered to witnesses or parties are not competent evidence Austin v. State, (1974) Ind., 319 N.E.2d 130; McDonald, supra.' Vacendak v. State, (1976) Ind., 340 N.E.2d 352 at 357.
in criminal prosecutions.' McDonald v. State, (1975) Ind.App., 328 N.E.2d 436 at 440. Similarly, and absent some form of waiver, mention that a defendant took a polygraph examination, or facts leading to this conclusion, will not be permitted.
This subject was also recently treated in Niehaus v. State, Ind., 359 N.E.2d 513, handed down January 25, 1977, wherein we stated that the waiver incidental to submitting to the test was merely a waiver of rights against self- incrimination. There, as in the case at bar, there was no waiver of the right to object to the introduction of the evidence upon other grounds such as unreliability, hearsay, or the invasion of the province of the jury to determine credibility.
The defendant's argument that the State's action in requesting the examination operated as an implicit stipulation of the probative value of the test results is without supporting authority and is unpersuasive, as is his argument that the State's request and the defendant's submission were waivers overcoming the prohibition against disclosure of the testing.
The defendant further argues that the motion in limine (which we take to mean the proscriptive order issued in response to the motion) was overly broad. However, this position is predicated upon the assumption that the polygraph evidence was admissible; and since we held against him upon that issue, it is not necessary to consider the claim over-breadth.
On December 19, 1972, Debra Gomez was found dead in the hothouse area of Sunnyside Park in East Chicago. She died as a result of asphyxia and strangulation caused manually or by the use of a ligature. The autopsy also revealed that she had died at approximately 5:30 p.m. of that day and that there was evidence of sperm in her vagina. When her body was found, it was nearly nude, her sweater having been pulled up over her face and her slacks and underwear down to her feet. The defendant does not challenge the establishment of the corpus delicti.
At approximately 6:15 of the evening of the same day, an unidentified person wearing a long dark overcoat and a closecropped hat or hood was seen running from the hothouse area. At approximately 7:00 p.m., the defendant was seen walking in an area approximately seven blocks from the hothouse. At that time he was wearing a long blue coat and had an afro-style haircut. Defendant was also seen by another witness between 7:00 and 8:00 p.m. on that day, and the last mentioned witness observed fresh scratches upon his hands. This witness testified that when she observed the scratches, Defendant said he had been fighting. The defendant was also seen by a third witness at approximately 11:00 a.m. on December 21st. At that time it was observed that he was wearing a long dark coat and had a large afro-style hair style haircut and had a badly scratched and bruised hand.
The foregoing related evidence, standing alone would be insufficient, as a matter of law, to support the guilty verdict. At most, it tends to establish a suspicion of guilt. Easton v. State, (1967) 248 Ind. 338, 228 N.E.2d 6; Johnson v....
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