Sides v. State, No. 49S00-9611-CR-730

Docket NºNo. 49S00-9611-CR-730
Citation693 N.E.2d 1310
Case DateApril 03, 1998
CourtSupreme Court of Indiana

Page 1310

693 N.E.2d 1310
William E. SIDES, Appellant,
v.
STATE of Indiana, Appellee.
No. 49S00-9611-CR-730.
Supreme Court of Indiana.
April 3, 1998.

Page 1311

Kurt A. Young, Nashville, for Appellant.

Jeffrey A. Modisett, Attorney General, John B. Herriman, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

A jury convicted William E. Sides of attempted murder, a class A felony; 1 attempted robbery, as a class B felony; 2 attempted carjacking, a class B felony; 3 and carrying a handgun without a license, a class C felony. 4 The jury also found him to be a habitual offender. 5 His sentence totaled fifty-five years.

In this direct appeal, Sides raises three issues:

I. Whether the trial court administered the oath to the jury, and if not, whether such a failure is cause for a new trial;

II. Whether the trial court erred in allowing the State to amend the charging information on the habitual offender count after closing arguments; and

III. Whether the evidence was sufficient to support Sides' convictions of being a habitual offender and carrying a handgun without a license.

Facts

The evidence most favorable to the verdict shows that on January 21, 1995, Sides approached Rayburn Washington in a White Castle parking lot located at 16th and Illinois Streets in Indianapolis. As Washington walked to his car, Sides attempted to get his attention. Washington ignored him and climbed into his car.

Sides continued to talk to Washington and tried to open his passenger door. Washington locked the door before Sides could open it. Sides then walked around the car and attempted to open the driver-side door, which also was locked. Sides persisted in talking to Washington. After he convinced him to roll down the window, Sides immediately placed a gun in his face. He ordered Washington to get out of his car, but Washington refused. Instead, he started his car and put it in reverse.

As the car rolled backwards, Sides grabbed Washington's coat and continued to point the gun at him. He again told Washington to get out of his car and threatened to shoot him if he did not comply. After Washington once more refused to exit, Sides shot him in the chest. Washington then stepped out of the car. Sides tried to push Washington out of the way, but Washington would not budge. Sides told him that he was crazy and fled the scene.

Washington left his car and walked into the restaurant. He showed off-duty Indianapolis

Page 1312

Police Department Officer Richard Kibbett that he had been shot. He described his assailant as a black male in a blue coat running eastbound from Illinois Street. Officer Kibbett radioed dispatch and gave them Washington's description of the shooter.

One block east of the shooting, IPD Officer Norris was making a routine traffic stop when he heard the radio dispatch. Realizing that only seconds earlier he had observed a man matching the description, Norris proceeded north on Illinois Street and turned east on 18th Street. As Norris drove across Meridian Street, he spotted Sides as he emerged from an alley. Sides was apprehended without incident, but denied any involvement in the shooting.

Although police failed to find a weapon on Sides, IPD Officer Norman Matthews drove two witnesses of the crime, Robert and Dorothy Ford, to the alleyway to identify the shooter. After both Fords positively identified Sides, he was taken into custody. The next day Washington also identified Sides as his assailant after viewing a six-photograph array.

I. Failure to Administer the Jury Oath

Sides contends the trial court failed to administer the oath to the jury. He says that his conviction is thus a "nullity." We disagree.

Sides correctly asserts that the administration of the oath is more than a mere formality. As our Court of Appeals once observed, the oath serves the dual function of impressing upon the jury the solemnness of the trial and ensuring a defendant's right to an impartial jury. Steele v. State, 446 N.E.2d 353, 354 (Ind.Ct.App.1983) (citing People v. Pribble, 72 Mich.App. 219, 249 N.W.2d 363 (1976)). The oath also informs the defendant when jeopardy attaches. Livingston v. State, 544 N.E.2d 1364, 1366-67 (Ind.1989) (citing Maddox v. State, 230 Ind. 92, 102 N.E.2d 225 (1951)).

In this case, the record does not clearly indicate whether the trial court administered the oath to the jury. 6 Resolving this question of fact is not crucial, however, because Sides failed to raise his objection during trial. In State v. Dolan, 122 Ind. 141, 23 N.E. 761 (1890), this Court said:

[I]t does not appear from facts, as stated in the motion, that any motion or request was made at the trial that the jury be resworn, nor was there any objection made to proceeding with the trial, but without objection the defendant proceeded to trial; and he thereby waived any informality in the manner or time of swearing the jury.

122 Ind. at 144, 23 N.E. at 762 (citations omitted). Further, any objection to the competency of a jury is waived if the defendant fails "to avail himself of such objections at the proper time, after they have come to his knowledge." Maddox, 230 Ind. at 99, 102 N.E.2d at 228 (quoting Adams v. State, 99 Ind. 244, 245, (1884) (citations omitted)). Because Sides failed to avail himself of this argument during trial, this...

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45 practice notes
  • United States v. Turrietta, No. 11–2033.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 29 Agosto 2012
    ...State v. Vogh, 179 Or.App. 585, 41 P.3d 421, 426–27 (2002); State v. Arellano, 125 N.M. 709, 965 P.2d 293, 296 (1998); Sides v. State, 693 N.E.2d 1310, 1312 (Ind.1998). The reasoning generally is that if an attorney informs the court of the inadvertence, it can be readily corrected with a b......
  • Alston v. State, No. 0156, September Term, 2005.
    • United States
    • Court of Special Appeals of Maryland
    • 3 Octubre 2007
    ...the courts considered a waiver of any objection. See United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972); Sides v. Indiana, 693 N.E.2d 1310, 1312 (Ind.1998); Manix v. Mississippi, 895 So.2d 167, 179 (Miss.2005); Missouri v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 716 (1936);11 Minneso......
  • Harris v. State, No. 21, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • 11 Septiembre 2008
    ...denied, ___ U.S. ___, 127 S.Ct. 2914, 168 L.Ed.2d 243 (2007) (An unsworn jury is not a "legally constituted" jury); Sides v. State, 693 N.E.2d 1310, 1312 (Ind.1998) ("[T]he oath serves the dual function of impressing upon the jury the solemness of the trial and ensuring a defendant's right ......
  • Brown v. State, No. 15A01-0812-CR-566.
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Septiembre 2009
    ...the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges." Sides v. State, 693 N.E.2d 1310, 1313 (Ind.1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201. A defendant's substantial rights are not prejudiced if both (......
  • Request a trial to view additional results
45 cases
  • United States v. Turrietta, No. 11–2033.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 29 Agosto 2012
    ...State v. Vogh, 179 Or.App. 585, 41 P.3d 421, 426–27 (2002); State v. Arellano, 125 N.M. 709, 965 P.2d 293, 296 (1998); Sides v. State, 693 N.E.2d 1310, 1312 (Ind.1998). The reasoning generally is that if an attorney informs the court of the inadvertence, it can be readily corrected with a b......
  • Alston v. State, No. 0156, September Term, 2005.
    • United States
    • Court of Special Appeals of Maryland
    • 3 Octubre 2007
    ...the courts considered a waiver of any objection. See United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972); Sides v. Indiana, 693 N.E.2d 1310, 1312 (Ind.1998); Manix v. Mississippi, 895 So.2d 167, 179 (Miss.2005); Missouri v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 716 (1936);11 Minneso......
  • Harris v. State, No. 21, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • 11 Septiembre 2008
    ...denied, ___ U.S. ___, 127 S.Ct. 2914, 168 L.Ed.2d 243 (2007) (An unsworn jury is not a "legally constituted" jury); Sides v. State, 693 N.E.2d 1310, 1312 (Ind.1998) ("[T]he oath serves the dual function of impressing upon the jury the solemness of the trial and ensuring a defendant's right ......
  • Brown v. State, No. 15A01-0812-CR-566.
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Septiembre 2009
    ...the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges." Sides v. State, 693 N.E.2d 1310, 1313 (Ind.1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201. A defendant's substantial rights are not prejudiced if both (......
  • Request a trial to view additional results

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