Serrano v. State, No. 176S7

Docket NºNo. 176S7
Citation266 Ind. 126, 360 N.E.2d 1257
Case DateMarch 31, 1977
CourtSupreme Court of Indiana

Page 1257

360 N.E.2d 1257
266 Ind. 126
Isadore SERRANO, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 176S7.
Supreme Court of Indiana.
March 31, 1977.

[266 Ind. 127]

Page 1258

Samuel J. Goodman, Mark H. Holtan, Kirk A. Pinkerton, Given, Dawson & Cappas, East Chicago, for appellant.

Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

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.

ISSUE I

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

Page 1259

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).

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.

'* * * In two recent cases, Bryant v. State (1973) 261 Ind. 172, 301 N.E.2d 179, and Utterback v. State (1974) 261 Ind. 685, 310 N.E.2d 552, this Court established the principle that a defendant who knows that the court is making an error assigning a trial date beyond the date permitted by the rules may not be discharged by reason of such error. The logic of such holding is that while a defendant may not be required to take affirmative action to bring himself to trial, other than to request an early trial if desired, if he sits idly by at a time when the court could yet grant to him a trial date within the proper period and permits the court, without objection, to set a date beyond the expiration of such period, he will be deemed to have acquiesced therein. '* * * The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the means that we have designed for their protection.' Utterback v. State (supra).'

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:

[266 Ind. 129] 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.

ISSUE II

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...

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17 practice notes
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 January 1980
    ...intended citation to Ellison v. State (1977), 266 Ind. 114, 360 N.E.2d 1256 (instead of the mistaken citation to Serrano v. State (1977), 266 Ind. 126, 360 N.E.2d 1257) for the proposition that at this time, presentence reports were even considered irrelevant and meaningless in jury Appella......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • 12 November 1982
    ...period was used up by his delaying motions, the appellant abandoned his speedy trial motion. This Court held in Serrano v. State, (1977) 266 Ind. 126, 360 N.E.2d 1257, that where the record is devoid of any indication during the seventy-day period that the defendant is seeking a speedy tria......
  • Serrano v. Duckworth, No. S 79-74.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 8 June 1979
    ...or attempt to perpetrate rape. On direct appeal to the Indiana Supreme Court his conviction was unanimously affirmed in Serrano v. State, 266 Ind. 126, 360 N.E.2d 1257 (1977). Petitioner alleges first, that the trial court erred in overruling his motion for discharge under Indiana Criminal ......
  • Sypniewski v. State, No. 976S315
    • United States
    • Indiana Supreme Court of Indiana
    • 15 November 1977
    ...any mention of a polygraph test administered to appellant. There is no merit to this argument. Serrano v. State, (1977) Ind., 360 N.E.2d 1257, [267 Ind. 227] II. Appellant next argues that the trial court erroneously gave the following preliminary instruction on the presumption of innocence......
  • Request a trial to view additional results
17 cases
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 January 1980
    ...intended citation to Ellison v. State (1977), 266 Ind. 114, 360 N.E.2d 1256 (instead of the mistaken citation to Serrano v. State (1977), 266 Ind. 126, 360 N.E.2d 1257) for the proposition that at this time, presentence reports were even considered irrelevant and meaningless in jury Appella......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • 12 November 1982
    ...period was used up by his delaying motions, the appellant abandoned his speedy trial motion. This Court held in Serrano v. State, (1977) 266 Ind. 126, 360 N.E.2d 1257, that where the record is devoid of any indication during the seventy-day period that the defendant is seeking a speedy tria......
  • Serrano v. Duckworth, No. S 79-74.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 8 June 1979
    ...or attempt to perpetrate rape. On direct appeal to the Indiana Supreme Court his conviction was unanimously affirmed in Serrano v. State, 266 Ind. 126, 360 N.E.2d 1257 (1977). Petitioner alleges first, that the trial court erred in overruling his motion for discharge under Indiana Criminal ......
  • Sypniewski v. State, No. 976S315
    • United States
    • Indiana Supreme Court of Indiana
    • 15 November 1977
    ...any mention of a polygraph test administered to appellant. There is no merit to this argument. Serrano v. State, (1977) Ind., 360 N.E.2d 1257, [267 Ind. 227] II. Appellant next argues that the trial court erroneously gave the following preliminary instruction on the presumption of innocence......
  • Request a trial to view additional results

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