Stewart v. State

• Decision Date: 22 September 1976
• Docket Number: No. 1--1275A220,1--1275A220
• Citation: 354 N.E.2d 749,170 Ind.App. 696
• Parties: Edward A. STEWART, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 749

354 N.E.2d 749

170 Ind.App. 696

Edward A. STEWART, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--1275A220.

Court of Appeals of Indiana, First District.

Sept. 22, 1976.

George E. Sawyer, Richmond, for appellant.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant, Edward A. Stewart, appeals from his conviction of Sale of a Narcotic Drug, ¹ raising the following issues for review:

(1) Whether the trial court erred in overruling the defendant's motion to dismiss for denial of a speedy trial.

(2) Whether there was sufficient evidence to sustain the conviction.

(3) Whether the defendant was prejudiced by the fact that a juror spoke to a witness for the State.

(4) Whether the defendant was tried by a jury of his peers.

The facts most relevant to these issues reveal that in January, 1973, the Indiana State Police Department in consort with Wayne County and Richmond Police authorities began an undercover drug investigation of the Wayne County area under the direction of Indiana State Police Trooper, Donald E. Bates. On March 29, 1973, Bates and three other police officers met with Richard L. Hale who had on prior occasions served as a drug informer. The purpose of this meeting was to prepare Hale to purchase heroin from Stewart. Hale was searched, given $100 in cash, and fitted with a transmitter so that his conversations could be monitored.

Thereafter, Hale drove directly to the YMCA in Richmond. The police officers followed in an unmarked surveillance car and parked within view of the front entrance to the YMCA.

Hale testified that he met Stewart in the lobby of the YMCA and from there they went to Room 307, where Stewart resided. Hale then counted out $100 in cash and paid that amount to Stewart. In exchange Stewart gave him a teaspoon of white powder wrapped in a foil packet, stating that the white powder was heroin. Stewart also gave Hale, as a sample, two capsules wrapped in a separate foil packet. No one else was present in the room during the transaction. Hale further testified that he and Stewart walked outside the front entrance of the YMCA. While on the front steps, Hale placed the two foil packets he had been carrying in his hand into his pants pocket. Hale then left and went directly to his car. Approximately two minutes later, Hale met the surveillance car and turned over the two foil packets to Trooper Bates.

On June 8, 1973, the Wayne County Grand Jury indicted Stewart for the Sale of a Narcotic Drug and for Possession of a Narcotic Drug. Stewart was arrested in Detroit, Michigan on November 3, 1973. Following extradition proceedings, he was returned to the Wayne County jail on April 17, 1974. A jury trial was held on July 22--24, 1975. Stewart was convicted of Sale of a Narcotic Drug and sentenced to a term of imprisonment of five to twenty years. From his conviction, Stewart appeals.

I.

The first issue for our consideration is whether the trial court erred in overruling the defendant's motion to dismiss for denial of a speedy trial. Defendant argues that the five month delay between the filing of the indictment (June 8, 1973) and his subsequent arrest (November 3, 1973) so prejudiced his ability to defend himself that it violated his right to a speedy trial under the Indiana (Art. 1, Sec. 12) and Federal Constitutions (Sixth Amendment). ²

Indiana Rules of Procedure, Criminal Rule 4, says in part:

'Discharge for Delay in Criminal Trials

(A) Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate 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 delay was caused by his act, * * *' (Emphasis added.)

Clearly, this Rule is not strictly on point to the case at bar, since defendant's argument involves a time period not controlled by CR. 4, however, it does provide assistance by analogy to aid in the determination of this issue.

The leading case on this issue, United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, has been subject to different interpretations. The defendants in Marion claimed that a three year delay between the occurrence of the alleged criminal acts and the filing of the indictment violated their right to speedy trial under the Sixth Amendment. The United States Supreme Court held that the right to speedy trial does not reach this period. The guarantee has no application until the putative defendant in some way becomes an 'accused'. 404 U.S. at 313. Since the defendants in Marion had not previously been arrested or otherwise charged, that event occurred only when they were indicted. In the words of Justice White, 404 U.S. at 320, 92 S.Ct. at 463:

'. . . it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.'

Although the language quoted above appears straightforward enough, courts have disagreed over its exact meaning. The two lines of authority on when the right to speedy trial attaches are outlined below. However, the result that would obtain in the instant case is the same. Under either approach, defendant's right to a speedy trial has not been violated.

A. Defendant's right to a speedy trial has not been violated because it does not include the time between his indictment and arrest.

Under one line of authority, the facts in Marion can be distinguished from the present case. The Tenth Circuit Court of Appeals, upon similar facts, declined to include the time from defendant's indictment to his arrest. United States v. Hay (1975), 10th Cir., 527 F.2d 990, cert. denied (1976), --- U.S. ---, 96 S.Ct. 1666, 48 L.Ed.2d 176. In Hay the indictment was ordered sealed and the defendant was not available for prosecution. Because the defendant was subject to neither restraints on his liberty nor public accusation before his arrest, the Hay court reasoned that none of the interests protected by the Sixth Amendment were endangered during this period. 527 F.2d at 994, n. 4.

If the Hay approach is adopted, the measuring period in this case would not include the five month delay between defendant's indictment and eventual arrest. Stewart's indictment was also secret. At the time it was issued the applicable statute was Ind.Ann.Stat. § 9--907 (Burns 1956) which prohibits public disclosure of an indictment until the defendant is arrested. Stewart acknowledges that he did not know of the charge until his arrest. The speedy trial guarantee would not cover the period alleged in this case because, under the circumstances, none of the interests which the Sixth Amendment was designed to protect were endangered during the delay.

B. Even if the right to speedy trial did reach the time between the filing of the indictment and defendant's arrest, defendant's right has not been violated in this case.

The other line of authority holds that the right to speedy trial attaches when a person is arrested or when he is formally charged by indictment or information, whichever occurs earlier. Eg., Daniels v. Maryland (1976), Ct. of Special Appeals, 30 Md.App. 432, 352 A.2d 859 at 862, n. 2, cert. denied (June 3, 1976).

One reason for applying the speedy trial guarantee to the post-indictment, pre-arrest period, even when the indictment is secret, is suggested by the analysis in Marion. The United States Supreme Court in Marion found it unnecessary to apply the Sixth Amendment to the period preceding arrest or indictment because the relevant statute of limitations provided an adequate safeguard against any possible prejudice that might result from pre-accusation delay. 404 U.S. at 321--323, 92 S.Ct. 455. Where, as in the present case, the statute of limitations is tolled by the filing of the indictment, no safeguard will operate to prevent an unreasonable delay in executing the arrest warrant unless the speedy trial guarantee applies.

Assuming that the right to speedy trial attached at the time of this indictment the next step is to apply the ad hoc balancing test announced in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. In determining whether the right has been denied, the relevant factors are length of delay, reason for delay, prejudice to the defendant and defendant's assertion of his right. See also, Fossey v. State (1970), 254 Ind. 173, 258 N.E.2d 616. The Barker standard for measuring defendant's right to speedy trial is equally applicable to Ind.Const., Art. I, Sec. 12. Collins v. State (1975), Ind.App., 321 N.E.2d 868.

CR. 4 provides guidance by analogy to the similar fact situation where there has been a delay in trial while defendant was in jail. In essence CR. 4 indicates Indiana's desire to provide the constitutionally guaranteed speedy trial. As indicated in CR. 4 the defendant shall have a speedy trial except where a continuance was had on his own motion or the delay was caused by his act.

In the present case the length of the delay, five months from the filing of the indictment to the execution of the warrant, is not itself inordinate. The subsequent period from the date of defendant's arrest (November 3, 1973) to his trial (July 22, 1975) involved delays occasioned by the defendant. The delay in executing the arrest warrant could be attributed to the fact that defendant had moved to another state and his whereabouts was not known to the authorities.

Defendant claims he was prejudiced by the post-indictment pre-arrest delay because he was thereby unable to locate four witnesses who could have testified in his behalf. Because these witnesses apparently had no first-hand knowledge of the drug sale, it does not...