Shack v. State, No. 1270S290

Docket NºNo. 1270S290
Citation288 N.E.2d 155, 259 Ind. 450
Case DateOctober 25, 1972

Page 155

288 N.E.2d 155
259 Ind. 450
Varderman SHACK, Appellant,
v.
STATE of Indiana, Appellee.
No. 1270S290.
Supreme Court of Indiana.
Oct. 25, 1972.

[259 Ind. 451]

Page 158

Clifford G. Antcliff, Greenwood, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

[259 Ind. 452] HUNTER, Justice.

This is an appeal by Varderman Shack, appellant (defendant below), from a conviction for First Degree Murder by which he was sentenced to life imprisonment. * Appellant was arrested in 1962 and convicted in 1963, however, in 1967 the conviction was reversed. See Shack v. State (1967), 249 Ind. 60, 206 N.E.2d 614, 249 Ind. 67, 231 N.E.2d 36. Appellant's second trial in 1969 resulted in a hung jury. Appellant was retried in 1970 which resulted in the conviction and life sentence. A motion to correct errors was filed and overruled. This appeal followed.

Appellant makes six main contentions of error. First, he asserts that his incarceration from 1962 until 1969 was a denial of a speedy trial and constituted cruel and unusual punishment. Secondly, he asserts that he was not brought to trial in 1970 within the time required either by the statutes or rules and therefore he should be discharged. Third, he claims his motion to strike the jury panel was erroneously overruled because irregularities occurred in the appointment of the jury commissioners and irregularities arose in selecting the panel. Fourth, he claims that certain jurors who stated on voir dire that they did not believe in the death penalty and could not vote for it under any circumstances were improperly excluded for cause. Fifth, he claims the court erroneously refused to grant a mistrial after two jurors were observed conversing with two prosecuting witnesses. Sixth, he claims that certain instructions tendered by the appellant were erroneously refused.

The first issue concerns whether the appellant was denied a speedy trial and exposed to cruel and unusual punishment arising from his incarceration from 1962 until 1969. Appellant states that five attorneys served him during that period, and that the last one, who served during the trial in question, was thus handicapped in his investigation. Additionally, the property where the crime allegedly occurred [259 Ind. 453] had been destroyed. We sympathize with the difficulties which both sides in the trial face when a party is tried after such a time span. It is admittedly more difficult to collect evidence and the memories of the witnesses fade. Appeals, unfortunately, are time consuming but the delay caused thereby cannot be used by the defendant to claim the denial of a speedy trial. See, State ex rel. Walker v. Ratliff (1970), 253 Ind. 495, 255 N.E.2d 223; United States v. Ewell (1966), 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627. The right to a speedy trial under the Sixth and Fourteenth Amendments of the Constitution and Article I, Section 12 of the Constitution of Indiana,

'is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures

Page 159

for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (954). 'Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances . . .. The delay must not be purposeful or oppressive,' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (399). '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1048).' United States v. Ewell, supra, at 120, 86 S.Ct. at 776.

The delays between 1962 and 1969 were for the benefit of the appellant, and we cannot imagine how the ends of justice would be enhanced by his discharge based on this delay. Additionally, appellant's claim that the delay has prejudiced his defense is insubstantial and speculative. It would seem [259 Ind. 454] that a certain advantage would accrue to the appellant because prior to the trial resulting in this appeal, he twice had the opportunity to see exactly what the State's case against him would be. Since no excessive delay during this period of 1962 to 1969 can be charged against the State, no constitutional denial of a speedy trial arises therefrom.

Appellant also contends that his incarceration from 1962 to 1969 was cruel and unusual punishment in violation of the Article I, Section 16 of the Constitution of Indiana. He claims his mail was censored, his visitors limited, and that he was kept in isolation on 'death row' for four years. The protection against cruel and unusual punishment prohibits atrocious punishment but does not prohibit imprisonment. Taylor v. State (1968), 251 Ind. 236, 236 N.E.2d 825. Four years of this seven year period, appellant was imprisoned due to his conviction for first degree murder. The rest of the time he was incarcerated during the pendency and prosecution of his trials. In no way can this incarceration be said to be excessive. See, People v. Wheeler (1971), 23 Cal.App.3d 290, 100 Cal.Rptr. 198; People v. Terry (1969), 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36. Nor can we say that isolated confinement on 'death row' constitutes cruel and unusual punishment. See, McElvaine v. Brush (1891), 142 U.S. 155, 12 S.Ct. 156, 35 L.Ed. 971; Trezza v. Brush (1891), 142 U.S. 160, 12 S.Ct. 158, 35 L.Ed. 974; Rosenberg v. Carroll (S.D.N.Y.1951), 99 F.Supp. 630. See also, State v. Scott (1972), 17 Ariz.App. 183, 496 P.2d 609; Adams v. Pate (7th Cir. 1971), 445 F.2d 105.

Appellant's next contention is that he was denied a speedy trial under Ind.Ann.Stat. § 9--1402 (1956 Repl.) IC 1971, 35--1--26--2 or Rule 1--4D (the predecessor of the present CR. 4(A)), which replaced § 9--1402 in 1965, whichever is applicable. At the threshold it must be decided which is applicable, the statute or the rule. In State ex rel. Uzelac v. Lake Criminal Court (1965), 247 Ind. 87, 93, 212 N.E.2d 21, 24, it was stated:

'Obviously, the end of uniformity and simplicity can be best achieved by applying Rule 1--4D to cases where 'the [259 Ind. 455] criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later)' occurred on and after July 1, 1965, and such interpretation of the effective date of Rule 1--4D of this Court is given accordingly.'

Also, it has been held that the applicable rule will be determinated by the date of the proceedings which started the time running. Johnson v. State (1969), 252 Ind. 79,

Page 160

246 N.E.2d 181. Although the original indictment was filed in 1962 in Marion County, it was refiled in Johnson County on January 3, 1968. The date of the proceedings which started the time running was in 1969. Since both the date of filing the indictment in Johnson County and the date from which the time started running come after January 1, 1965, Rule 1--4D is held to be applicable to the case at bar. The pertinent portion of Rule 1--4D read:

'1. Defendant in Jail.--No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last mentioned circumstances, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.'

Appellant had, of course, been held in jail for more than six months but the delays had been caused by his own acts. When a defendant causes a delay during the six month period the time begins to run anew. Summerlin v. State (1971), Ind., 271 N.E.2d 411. In the case at bar, appellant filed a motion for dismissal and discharge [259 Ind. 456] on October 17, 1969, and moved that the trial date (then set for October 20, 1969) be continued so that he might be heard on this motion before trial. The trial court granted the continuance and set October 27, 1969 for hearing the motion for dismissal and discharge. On Ocrmber 27, the court heard evidence and took the motion under advisement, giving the parties ten days to file briefs. On November 10, 1969, the appellant filed a petition for extension of time to file his brief, and finally on December 4, 1969, appellant filed his brief. On December 12, 1969, the court overruled the motion and set trial for May 4, 1970. The trial date was later moved back to May 6, 1970.

Appellant contends the time should begin to run anew from October 17, 1969, which would mean the trial came more than six months later. However, the delay caused by the appellant did not terminate until December 12, 1969, when the motion which he filed was ruled upon. In State v. Haley (1971), Ind., 268 N.E.2d 80,...

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41 practice notes
  • Highler v. State, No. 02A03-0505-CR-203.
    • United States
    • Indiana Supreme Court of Indiana
    • September 15, 2005
    ...does not result in the systematic exclusion of any group. Azania v. State, 778 N.E.2d 1253, 1256-57 (Ind.2002); see also Shack v. State, 259 Ind. 450, 459-60, 288 N.E.2d 155, 162 In Azania, 778 N.E.2d at 1260, our Supreme Court discussed two tests under the Page 189 Sixth Amendment to deter......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...Ind., 396 N.E.2d 376; State ex rel. Burns v. Sharp, supra; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600; Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155; State ex rel. Brune v. Vanderburgh Circuit Court, (1971) 255 Ind. 505, 265 N.E.2d The fact that the commissioners did not alw......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...error unless there is substantial prejudice to the defendant's rights as a result of such irregularities. Shack v. State, (1972) 259 Ind. 450, 457, 288 N.E.2d 155, 161; Harrison v. State, (1952) 231 Ind. 147, 165, 106 N.E.2d 912, 921; Rudd v. State, (1952) 231 Ind. 105, 111, 107 N.E.2d 168,......
  • Moreno v. State, No. 3--1273A181
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1975
    ...we must look to the date of the proceedings which started the one year period of limitation running. See Shack v. State (1972), 259 Ind. 450, 288 N.E.2d 155. For the purposes of CR. 4(C) prior to the 1973 amendment, the time began to run from the date on which a recognizance was first taken......
  • Request a trial to view additional results
41 cases
  • Highler v. State, No. 02A03-0505-CR-203.
    • United States
    • Indiana Supreme Court of Indiana
    • September 15, 2005
    ...does not result in the systematic exclusion of any group. Azania v. State, 778 N.E.2d 1253, 1256-57 (Ind.2002); see also Shack v. State, 259 Ind. 450, 459-60, 288 N.E.2d 155, 162 In Azania, 778 N.E.2d at 1260, our Supreme Court discussed two tests under the Page 189 Sixth Amendment to deter......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...Ind., 396 N.E.2d 376; State ex rel. Burns v. Sharp, supra; Taylor v. State, (1973) 260 Ind. 264, 295 N.E.2d 600; Shack v. State, (1972) 259 Ind. 450, 288 N.E.2d 155; State ex rel. Brune v. Vanderburgh Circuit Court, (1971) 255 Ind. 505, 265 N.E.2d The fact that the commissioners did not alw......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...error unless there is substantial prejudice to the defendant's rights as a result of such irregularities. Shack v. State, (1972) 259 Ind. 450, 457, 288 N.E.2d 155, 161; Harrison v. State, (1952) 231 Ind. 147, 165, 106 N.E.2d 912, 921; Rudd v. State, (1952) 231 Ind. 105, 111, 107 N.E.2d 168,......
  • Moreno v. State, No. 3--1273A181
    • United States
    • Indiana Court of Appeals of Indiana
    • November 5, 1975
    ...we must look to the date of the proceedings which started the one year period of limitation running. See Shack v. State (1972), 259 Ind. 450, 288 N.E.2d 155. For the purposes of CR. 4(C) prior to the 1973 amendment, the time began to run from the date on which a recognizance was first taken......
  • Request a trial to view additional results

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