Simpson v. State, 178S5
| Docket Nº | No. 178S5 |
| Citation | 381 N.E.2d 1229, 269 Ind. 495 |
| Case Date | November 01, 1978 |
| Court | Supreme Court of Indiana |
Page 1229
v.
STATE of Indiana, Appellee.
[269 Ind. 497]
Page 1231
Robert L. Sheaffer, Shelbyville, for appellant.[269 Ind. 498] Theodore L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
PIVARNIK, Justice.
Following a jury trial in the Bartholomew Circuit Court, appellant Simpson was found guilty of first-degree felony murder and was sentenced to life imprisonment. The homicide in question occurred on October 30, 1976. On that day, Simpson and Ben Rodriguez, wearing masks and carrying guns, were discovered outside the kitchen door of the home of the victim, Ernestine Garcia, by the victim's daughter. The men ordered the girl back inside and asked her for money. At this point, the victim entered the kitchen. The men demanded money from her also. Mrs. Garcia went into a bedroom and returned holding a revolver rather than the money sought by the robbers. Rodriguez then shot the victim with a shotgun while Simpson fired two shots from his gun. The pair then fled through a cornfield along with two accomplices who had waited outside. The four eventually joined with a fifth man who had waited by a road with an automobile. As the five men drove away, they passed an auto being driven by the victim's married daughter and son-in-law who were rushing to the scene of the shooting. Both the daughter and son-in-law recognized Ben Rodriguez in the car and advised police of this fact. This tip eventually led to the capture of the five men.
Appellant presents seven issues for our review. These issues concern: (1) the Juvenile Court's exercise of jurisdiction over appellant, an order by the Juvenile Court denying bail, and the denial of appellant's Motion for Change of Venue from the Juvenile Court Judge; (2) the denial of appellant's Motion for Continuance; (3) the refusal by the trial court to permit a psychologist to testify; (4) the admission into evidence of two photographs of the victim; (5) the giving of certain jury instructions; (6) the denial of appellant's Motion for Judgment on the Evidence, and; (7) the sufficiency of the evidence.
[269 Ind. 499] I.
Appellant first advances three arguments relating to the initiation of proceedings against him in the Shelby Juvenile Court. Specifically, he argues that the Juvenile Court was without jurisdiction and that the Juvenile Court Judge erred in denying his motions to be let to bail and for change of judge. In order to respond to these contentions it is necessary to review the facts of the case with culminated in appellant's trial before the Bartholomew Circuit Court.
Appellant was arrested on November 3, 1976, and charged in Shelby Juvenile Court under Cause No. Juvenile 76-229, with having
Page 1232
committed the following three acts of delinquency which would have been crimes if committed by an adult: felony murder, commission of a felony while armed with a dangerous and deadly weapon and conspiracy to commit a felony. On November 16, 1976, the State of Indiana filed its petition for waiver of juvenile jurisdiction and on November 30, 1976, the appellant filed a motion for Change of Venue from the Judge in the Juvenile Court. The Court denied the Motion for Change of Judge and continued with the waiver hearing. During the course of these proceedings appellant also moved to be let to bail but this was denied by the court.On February 9, 1977, the Juvenile Court waived juvenile jurisdiction of appellant on the three counts enumerated above. A Motion to Correct Errors was filed by the appellant and overruled by the Court.
The Grand Jury of Shelby Count, empaneled by the Shelby Superior Court on February 9, 1977, returned an indictment in three counts charging appellant with Count I, murder in the commission of a felony, Count II, commission of a felony while armed with a dangerous and deadly weapon, and Court III, conspiracy to commit a felony. On February 21, 1977, appellant filed his verified Motion for Change of Venue from the County and the same was granted. The cause was then venued to Bartholomew County and proceeded [269 Ind. 500] there. The appellant filed a Motion to Dismiss as to all three counts before the Bartholomew Circuit Court and the Court granted said Motion as to Counts II and III, but denied said Motion as to Count I, leaving the defendant to stand trial for felony murder.
The Juvenile Court of Shelby County was clearly without jurisdiction as to the felony murder charge as Ind. Code § 31-5-7-4.1(a)(1)(A)(Burns Supp. 1978) specifically excludes the offense of murder from the list of acts which, when committed by a child, would serve to characterize such child as a delinquent. However, the Juvenile Court did have jurisdiction of the other two counts with which appellant was charged in that court. The court therefore had the authority to order the defendant held without bond under the facts before it and no error occasioned by the Juvenile Court's refusal to set a bond is presented in this appeal.
Further, a juvenile clearly has a right to a change of judge in a juvenile hearing and it appears that said motion should have been granted to this appellant at the time it was made prior to his waiver from Juvenile Court. Ind. Code § 34-2-12-1 (Burns 1975); State ex. rel. Duffy v. Lake Juvenile Court, (1958) 238 Ind. 404, 151 N.E.2d 293. When this same issue was presented to the Circuit Court, Counts II and III were dismissed on the ground that the Juvenile Court improperly denied appellant's Motion for Change of Venue from the Judge and on the question as to proper venue raised as to Count III. We say apparently, because the court did not give reason for dismissal in his Order. Since the latter two charges were dismissed by the Circuit Court, the only question remaining is what, if any, prejudice has accrued to appellant on the remaining charge of felony murder with which we are here concerned. Since the Juvenile Court had no jurisdiction over appellant as to the felony murder charge, the waiver order on that charge was of no effect. The Grand Jury later returned an indictment[269 Ind. 501] against appellant for felony murder which they had the jurisdiction to do since he was not a juvenile in regard to that charge. The record shows that in the waiver order of the Juvenile Court, judgment was entered in accordance with Ind. Code § 31-5-7-4.1(a)(1) (Burns...
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