Smith v. State

• Decision Date: 12 March 1985
• Docket Number: No. 984S340,984S340
• Citation: 475 N.E.2d 27
• Parties: James SMITH, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 27

475 N.E.2d 27

James SMITH, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 984S340.

Supreme Court of Indiana.

March 12, 1985.

Sheila Suess Kennedy, Mears, Crawford, Kennedy & Eichholtz, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant James Smith, Jr. was found guilty of Attempted Murder, a class A felony, and Robbery, a class A felony, by a jury in the Marion Superior Court on April 25, 1984. On May 15, 1984, the Honorable Patricia J. Gifford sentenced Appellant to the Department of Corrections for a period of fifty (50) years for each Count, totalling a term of one hundred (100) years. The sentences were ordered to be served consecutively. Appellant now directly appeals and raises the following four issues:

1. the trial court erred by denying Defendant's motion to suppress;

2. the trial court erred by denying Defendant's motion for continuance;

3. the trial court erred by ordering Defendant shackled through the trial; and

4. the trial court erred by allowing Defendant to be convicted of two separate crimes and by imposing two separate sentences.

Appellant Smith visited Eve's Garden Massage Parlor in Indianapolis on August 3, 1983. He paid twenty-five ($25.00) dollars for rent on a room with a waterbed and paid masseuse Carry Perry forty ($40.00) for a nude sensitivity session. During the session, Appellant became dissatisfied and demanded his money back. Perry returned the forty ($40.00) dollars but told him he would have to discuss the refund of the room rent with the security guard in the front office. Richard Armstrong, age forty (40), was the security guard stationed in the office where room rent was collected. Appellant requested the refund, but Armstrong politely told him refunds were not permitted. Signs in the lobby area indicated this policy. Appellant left but returned about thirty (30) minutes later. He charged into the establishment with a large caliber handgun, exclaiming to Armstrong, "I'm going to kill you." Before Armstrong could retrieve his revolver, Appellant shot him in the neck, severing Armstrong's motor nerves. Defendant took Armstrong's money and revolver, then pointed his gun at Perry and another masseuse and demanded their money. The other masseuse promptly gave him twenty-five ($25.00) dollars and Perry gave him sixty ($60.00) dollars. As Appellant turned to leave he shot Armstrong once more, this time in the arm.

Armstrong suffered serious injuries causing a two month hospital stay. He is paralyzed, suffers ongoing muscle spasms along with other side effects, and is permanently confined to a wheelchair.

I

Appellant first claims the trial court erred by denying his motion to suppress. Appellant's motion to suppress alleged that his confession was the result of police harassment, physical abuse, and duress. The record reveals that on February 16, 1984, Appellant's attorney filed a motion to suppress evidence. On February 23, 1984, Judge Gifford set a hearing date of March 3, 1984 on Defendant's motion. The record further indicates a hearing was held March 3, 1984 wherein Defendant's motion to suppress was denied.

Officer John Larkins interviewed Appellant on August 10, 1983 after fully reapprising Appellant of his Miranda rights. The record reveals that Officer Larkins testified at trial that after reading Appellant his Miranda rights, Appellant stated he wanted to make a statement. A waiver form was executed and introduced at trial. After the form was signed Larkins engaged in a tape recorded conversation with Smith. The transcript of this conversation was read to the jury and presented in the record. In it Appellant admits visiting the massage parlor and returning with a gun with the intent to receive a refund. He claims he shot Armstrong because he thought Armstrong was going to shoot him. He also admits he stole the gun he used to shoot Armstrong from an apartment security guard. Furthermore, he states he took Armstrong's gun with the intent of reselling it. Larkins testified that Appellant was fully cooperative and nonviolent the day of this conversation and that Larkins never touched Appellant. However, Larkins testified that two days later Appellant became violent and Larkins used force in return to constrain him.

The record reveals that a hearing was held on Appellant's motion to suppress and the trial court thereafter denied Appellant's motion. Appellant now alleges this was error. The record simply does not support Appellant's claim. Appellant has neglected to include in the record any transcript of the March 3, 1984 hearing. It was incumbent upon Smith, as appellant, to present a sufficient record to permit an intelligent review of this issue. Smith v. Indiana, (1981) Ind., 422 N.E.2d 1179; Jaske v. State, (1978) 269 Ind. 196, 379 N.E.2d 451. Thus, the error which is alleged but not disclosed by the record is not a proper subject for review. Id. Because the record before us contains mere allegations of a coerced confession, and no evidence to support these allegations, we cannot conclude that the trial court erred by denying Appellant's motion to suppress evidence.

II

Appellant argues the trial court erred by denying his motion for continuance. Because the prosecutor filed additional discovery on the last working day before trial, Defendant sought a continuance. The record shows that at the hearing on Defendant's motion the only additional discovery were two witnesses who were to be called by the State to testify only as to chain of possession. The trial court determined that before each witness testified, Defendant would be granted a thirty (30) minute continuance. Appellant now claims the trial court erred in this ruling.

Denial of a continuance motion is reversible error only where there has been a clear abuse of discretion. Downer v. State, (1982) Ind., 429 N.E.2d 953. Furthermore, Appellant is not entitled to reversal unless he can demonstrate he was prejudiced by the error he asserts. Springer v. State, (1984) Ind., 463 N.E.2d 243; Henderson v. State, (1983) Ind., 455 N.E.2d 1117. Upon review of the record we can find no harm occasioned by Appellant due to the court's denial of his motion for continuance. The trial court did not abuse its discretion by determining Appellant's counsel could adequately question each chain of custody witness for thirty minutes before that witness testified. Therefore, Appellant has demonstrated no error by raising this issue.

III

Appellant alleges next that the trial court erred by ordering Defendant shackled through trial and by allowing Defendant to appear in court in prison garb. Due to the lack of necessity for such measures, Appellant argues he did not receive an impartial trial.

A trial court is afforded discretion in matters of maintaining order and security for the courtroom and it will be deemed proper to have an accused wear shackles during trial to reach that end. Howard v. State, (1984) Ind., 467 N.E.2d 1, 2. Again the record clearly reveals that such measures were warranted. The trial court found, after a hearing on this matter, as follows:

"... the Court is of the opinion that the (because of the) recommendation of the jail Commander and of the deputies present that the defendant should remain in chains and that he is dressed in the attire that he is dressed in of his own free will and choice and that he does have clothes present to put...