Swinehart v. State
| Decision Date | 07 March 1978 |
| Docket Number | No. 1-1176A230,1-1176A230 |
| Parties | Floyd SWINEHART, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
James Lowenthal, of Colman, Lowenthal & Loftman, Bloomington, for defendant-appellant.
Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant Floyd Swinehart (Swinehart) appeals after conviction in the Brown Circuit Court of second degree burglary, 1 auto banditry, 2 and safe burglary. 3
During the early hours of July 17, 1975, one or more persons surreptitiously entered the Brown County Courthouse, forced open the safes in the Clerk's Office and Treasurer's Office, and departed with $516.16 as reward for the venture.
On June 4, 1976, after considering evidence described in this opinion in Issue Four, a jury concluded that Swinehart perpetrated that burglary.
We affirm.
Swinehart raises five issues for review:
1. Did the trial court err in refusing to grant Swinehart a continuance attributed to the State?
2. Did the trial court err in admitting evidence obtained during a search of a third party's home and automobile?
3. Did the trial court err in admitting evidence concerning other crimes of which Swinehart had been convicted?
4. Did the State present sufficient evidence of probative value to prove beyond a reasonable doubt that Swinehart committed the offenses charged?
5. Did irregularities in the jury selection procedure deprive Swinehart of his right to trial by an impartial jury?
Swinehart contends that he was forced to choose between his right to a speedy trial and his right to effective assistance of counsel.
A jury had been unable to reach a verdict in a prior trial of Swinehart and a codefendant, Wells. On the morning of the second trial, the State moved for dismissal of charges against Wells. When the trial court dismissed the charges against Wells, the possibility loomed that certain evidence suppressed during the first trial could be introduced in the second trial.
Swinehart moved for a continuance but insisted that it be attributed to the State. The trial court refused to grant a continuance attributed to the State, and Swinehart refused to seek a continuance attributed to himself.
The granting or denying of a continuance is within the discretion of the trial court. Even with a showing of surprise, there also must be a showing that defendant will be harmed by denial of the continuance. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113.
Swinehart's attorney was appointed September 2, 1975, to represent him. The same attorney represented Swinehart in the prior trial in which the jury had been unable to reach a verdict. Swinehart's attorney had time and occasion to become well acquainted with the facts of the case before the second trial took place June 2-4, 1976. The dismissal of charges against Wells no doubt forced a change of strategy at trial, but the record does not indicate that Swinehart was denied effective assistance of counsel. The trial court did not abuse its discretion in refusing to grant a continuance upon the terms Swinehart dictated.
A single search warrant was issued authorizing the search of the homes and automobiles of both Swinehart and Wells. The evidence obtained as a result of the searches was suppressed at the prior trial of Swinehart and Wells because the affidavit in support of the search warrant was found to be deficient. Swinehart argues that he had standing to object at his second trial to the admission of evidence seized from Wells' home and automobile because the State created joint standing when the single search warrant was issued for the search of property of both Wells and Swinehart.
A search of a third party's property or home cannot be made the basis of a claim by a defendant for the exclusion of evidence, even if the search was made without probable cause. Kirkland v. State (1968), 249 Ind. 305, 232 N.E.2d 365.
The search warrant was issued as authorization for the search of the residence of Wells, the residence of Swinehart, and two automobiles, the ownership or possession of which was not stated. Swinehart does not allege that he had possession of Wells' home or automobile at the time they were searched or that he was present at the time they were searched.
Evidence unlawfully seized is excluded from trial as a means of making effective the protection of privacy. Finding standing in Swinehart in no way would serve the purpose of the exclusionary rule.
An invalid search warrant cannot provide a basis for a lawful search, but neither does it provide defendant with status or standing which he does not otherwise possess. Because the property searched belonged to a third party, Swinehart has no basis for a claim for exclusion of the evidence seized from the home and automobile of Wells.
Swinehart argues that the trial court erred when it admitted evidence concerning Swinehart's prior convictions for theft and safe burglary in Shelby County.
Evidence of criminal activity other than the crime charged may be admitted to show intent, motive, purpose, identification, or common scheme or plan. Cobbs v. State (1975), 264 Ind. 60, 338 N.E.2d 632.
The State introduced a certified copy of court records of the Shelby Superior Court showing that Swinehart had been convicted of safe burglary and theft in Shelby County and sentenced January 14, 1976. A law enforcement officer testified that the safe burglaries of which Swinehart had been convicted occurred in Shelbyville during the late hours of August 15 or early hours of August 16, 1975. In each case the safe had been forced open in a manner similar to that used at the Brown County Courthouse on July 17, 1975.
The offenses for which Swinehart was being tried in Brown County and those for which he already had been convicted in Shelby County occurred only one month apart and reflected similarities in the procedures used. The trial court admonished the jury that the evidence of prior convictions should be used only in considering the possibility of a common scheme. We hold that the trial court did not err in admitting the evidence concerning Swinehart's prior convictions.
Swinehart argues that the State introduced insufficient evidence to prove beyond a reasonable doubt that Swinehart committed the offenses charged.
Swinehart and the State stipulated that a safe burglary and second degree burglary occurred at the Brown County Courthouse on July 17, 1975, and that, among other things, $100 in one dollar bills and rolls of coins of various denominations were taken during the burglary.
The Nashville Town Marshall (Wayt) saw Swinehart driving a 1965 or 1966 red Ford automobile bearing a license plate with a 73B prefix in Nashville at approximately 11;00 p. m. on July 16, 1975. The car was being driven slowly, and Swinehart and his passenger were looking up and down the streets. Wayt saw the same automobile again in Nashville between 1:00 and 1:30 a. m. on July 17, 1975.
A patrolman for the Brown County Sheriff's Department (Swift) observed a red 1966 Ford automobile bearing a license plate with a 73B prefix in Nashville between 1:00 and 1:30 a. m. on July 17, 1975. Swift identified Swinehart as the passenger in that automobile.
During a subsequent search of a red 1966 Ford automobile bearing a license with a 73B prefix (owned by former codefendant Wells), officers discovered a roll of nickels, Swinehart's social security card, an Indiana map with all of the county seats marked, and money wrappers.
The safes in the Brown County Clerk's Office and Treasurer's Office were "peeled" by pounding loose and peeling back the fronts of the safes to reveal the locking mechanisms packed in fire clay. The fire clay was knocked out to allow the doors to be opened. The floor of the Treasurer's Office was covered with a fine greyish-white dust from the fire clay. Footprints appearing in the dust had been made by someone wearing tennis shoes.
The radio dispatcher at the Brown County Sheriff's Department heard a noise that sounded as if someone was pounding a hammer against heavy metal at approximately 2:00 a. m. on July 17, 1975. The radio dispatcher was working approximately fifty feet from the Brown County Courthouse when he heard the noise.
Witness Jim Dial saw a red 1965 or 1966 Ford automobile with license plate number 73B4353 traveling eastward on Road 44 toward Shelbyville between 3:00 and 3:30 a. m. on July 17, 1975.
Witness Jim Casey observed Swinehart using bills from a two-inch roll of one dollar bills to make a purchase at approximately 3:45 a. m. on July 17, 1975, in Shelbyville. Casey saw Swinehart in another store at approximately 4:00 a. m. that same morning and noted that a white powdery substance was on Swinehart's shoes.
The evidence set forth above provides a sufficient basis for the jury to conclude beyond a reasonable doubt that Swinehart participated in the burglary at the Brown County Courthouse on July 17, 1975.
Swinehart argues that he should be granted a new trial because of noncompliance with statutes prescribing the procedure for selection of prospective jurors. 4
Swinehart alleges in his motion to correct errors and in this appeal that he learned of the improprieties in the jury selection procedure only four days before the deadline for filing of his motion to correct errors. He filed an affidavit indicating that the clerk and jury commissioners of Brown County had admitted that no jury box was used in selecting the jury panel. Furthermore, there was no record that the jury commissioners had taken an oath and the clerk had failed to enter a list of prospective jurors upon the order book of the court. Without citing support in the record for his statement, Swinehart asserts that eight of the twelve...
To continue reading
Request your trial
-
Lee v. State
...herein, a reasonable trier of fact could conclude Lee participated in the Dunkirk Moose Lodge burglary. See Swinehart v. State (1st Dist. 1978) Ind.App., 372 N.E.2d 1244, 1247-48. Judgment BUCHANAN, C. J., and SHIELDS, J., concur. 1 I.C. 35-17-3-3 (Burns Code Ed.1975) (current version at I.......
-
Owens v. State
...incorrect sentence is imposed and a court on review cannot ignore such error when it is apparent on the record. Swinehart v. State (1978), 175 Ind.App. 588, 372 N.E.2d 1244, 1250. Owens's conviction for the class D felony of child molesting is vacated. The conviction with reference to the c......
-
Meredith v. State
...Ind. 286, 289-91, 231 N.E.2d 797, 799 (no such crime as assault and battery with intent to commit manslaughter). In Swinehart v. State, (1978) Ind.App., 372 N.E.2d 1244, the defendant was convicted of three offenses, second degree burglary, auto banditry, and safe burglary, and was sentence......
-
Rivera v. State
...the proceedings a mockery and shocking to the conscience of the court. Jelks v. State (1978), Ind., 378 N.E.2d 848; Swinehart v. State (1978), Ind.App., 372 N.E.2d 1244. Rivera claims that his trial counsel failed to subpoena two witnesses that would have substantiated his alibi. This conte......