Shack v. State
Decision Date | 25 October 1972 |
Docket Number | No. 1270S290,1270S290 |
Citation | 288 N.E.2d 155,259 Ind. 450 |
Parties | Varderman SHACK, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Clifford G. Antcliff, Greenwood, for appellant.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.
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 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,
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 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 ( ), 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 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. 79 246 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:
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 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, this Court held that where a defendant filed a motion for severance and a separate trial, he was not entitled to credit for...
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