Treadwell v. State

• Decision Date: 06 June 1972
• Docket Number: No. 2,No. 272A77,272A77,2
• Citation: 283 N.E.2d 397,152 Ind.App. 289
• Parties: Stephen TREADWELL, Appellant, v. STATE of Indiana, Appellee
• Court: Indiana Appellate Court

Page 397

283 N.E.2d 397

152 Ind.App. 289

Stephen TREADWELL, Appellant, v. STATE of Indiana, Appellee.

No. 272A77.

Court of Appeals of Indiana, Division No. 2.

June 6, 1972.

Hall Cochrane, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

WHITE, Presiding Judge.

Defendant-appellant Treadwell's court appointed appellate counsel has managed to crowd into a rather short brief a remarkable number of suggestions of error in this appeal from a ten to twenty-five year robbery sentence ¹ imposed following conviction at a trial without jury. Because the logic, authority, and record to support those suggestions are so weak, while the possibilities they portend are so grave, we have taken great care to read the entire record very carefully, including the complete transcript of the trial proceedings. That study has convinced us beyond any doubt that defendant had a fair trial and that the evidence of his guilt was both substantial and of sufficient probative value to convince any prudent mind beyond a reasonable doubt that defendant is guilty of the offense with which he is charged. ² If there were irregularities in the proceedings they have not operated to deny defendant a fair trial not to produce reversible error. The judgment must be, and is, affirmed.

This opinion should and would have ended here but for the Supreme Court's Rule AP. 11(B)(2)(e) which requires that we 'give a statement in writing of each substantial question arising on the record and argued by the parties'. We therefore state only what we believe will demonstrate to the parties that we have given consideration to every question argued (some of which are not 'on the record') and have found that none are substantial.

There were but three witnesses at the trial: the victim, the arresting officer and the defendant. From a careful reading of their testimony we find that most of the facts are undisputed.

On Saturday night, July 10, 1971, about ten o'clock, the victim was robbed of twenty-six dollars in United States currency on a sidewalk in front of a tavern he had just left. Immediately prior to the robbery the appellant-defendant had walked across the street with another man. When defendant and that other man came close to the victim, an altercation ensued. In that altercation the victim was beaten with someone's fists and the paper money was torn from his pocket. The two men then ran from the scene. The other man fired two shots from across the street and what then became of him is unclear, but it is conceded that he took the victim's money with him. Defendant, however, was pursued and caught by the victim (and by the victim's nephew who was standing nearby) about four or five blocks from the tavern. He was held until police arrived and arrested him. Defendant had no weapon of any kind on his person at the time he was arrested and there is no testimony concerning whether he had any money or anything else, except that he did not have the money taken from the prosecuting witness. Defendant gave a statement (apparently oral) to the arresting officer in which he denied having robbed anyone. What else he told the officer is not in evidence.

There is conflict in the evidence with respect to whether defendant participated in the taking of the money by force from the victim's person. The victim testified repeatedly that both men beat him, although he could not say which of the men struck him first nor did he know which man took the money from his pocket.

Defendant testified and admitted that he did cross the street with the other man but maintained that he was walking with him purely by coincidence; that he had never seen the other man before and did not know who he was. He further testified that when he first saw the 'victim' he (the victim) was lying down and that '(h)e jumped up and he had a hookbill ³ and cut and hit me'. The nephew then joined the fight and defendant thought he was in great danger from the hookbill and that they were trying to rob him. Defendant did not see the man who walked across the street with him after the victim and nephew jumped onto defendant, although defendant did hear shots being fired as he ran from the scene.

We assume it is unnecessary to say anything further in regard to the sufficiency of the evidence except to note that the record contains no mention of the failure of the State to produce the nephew as a witness even though his name is endorsed as such on the affidavit. Appellant's brief suggests the State's failure to show any excuse for not calling him raises an 'adverse presumption'. ⁴ If so, its weight was for the trier of fact as was the weight of defendant's exculpating testimony. No rule of law nor of reason of which we are aware could logically assign to either of these factors an arbitrary or fixed weight. No reviewing court is in any position to say that these factors carry sufficient weight to tilt the scales of justice to the point of indicating that the guilty finding is not sustained by substantial evidence of probative value. On the contrary, the weight of any particular witness' testimony (or failure to testify) is for the trier of fact to determine. ⁵

Among other points appellant attempts to raise is jurisdiction. Because (as he contends) the record is silent as to any preliminary hearing having been held, ⁶ appellant contends the trial court was without jurisdiction. While it is true that Ind.Ann.Stat. § 9--704 (Burns 1956), IC 1971, 35--1--8--1, requires that every person arrested without a warrant, or on a warrant issued by a magistrate, must be taken before the issuing magistrate or the nearest magistrate for a hearing ⁷ and failure so to do within a reasonable time after such an arrest may well have consequences unfavorable to the State, it has never been held (in Indiana) that loss of jurisdiction is one of them. The fact that defendant is present in court is sufficient to give the court criminal jurisdiction of his person and how he got there has no bearing on jurisdiction although it may have other consequences. ⁸

Jurisdiction of the subject matter is conferred by law and we judicially know that the Criminal Court of Marion County has jurisdiction of all felonies. ⁹ Jurisdiction of the particular case was conferred by the filing of the affidavit (information). ¹⁰ It is defendant's contention that if he did have a preliminary hearing on July 11, 1971 (as his own motion to correct errors asserts he did have) he could legally be held for only seven days after that hearing, yet he was held for 20 days after July 11, 1971, before he was charged by affidavit (information) in the Criminal Court. As to that contention we need only note that it is founded on a misapplication to this case of the provisions of Ind.Ann.Stat. § 9--704a (Burns 1956) IC 1971, 35--4--1--1, which created (in 1949) 'an additional and alternative pleading and procedure . . . known as the preliminary charge' whereby persons arrested on reasonable belief that they had committed a felony but under circumstances 'which might or could negative' their participation in the crime can be held to bail 'for a period not exceeding seven days' unless an 'affidavit of indictment be filed against said person'. That statute obviously has no application to the prosecution of an accused arrested without warrant and later afforded a preliminary hearing pursuant to Ind.Ann.Stat. § 9--704 (Burns 1956), IC 1971, 35--1--8--1, on an affidavit charging the felony for which he was arrested. In a § 9--704 hearing the authority of the magistrate is limited to the discharge of the accused or to his recognizance to the criminal court. ¹¹ Appellant has wholly failed to show that he was not properly bound over to the Criminal Court after a § 9--704 preliminary hearing in Municipal Court. Furthermore, his unverified assertion in his motion to correct errors that he had no attorney at that hearing and was not advised of his right to counsel is not only unsupported by the record, but there is no showing that the preliminary hearing (or even the want of hearing, if none was held) had any consequence other than to hold defendant in custody in lieu of reasonable bail until the affidavit was filed against him in Criminal Court. Absent some plausible suggestion that whatever occurred (or failed to occur) between defendant's arrest and the filing of the affidavit in Criminal Court had consequences which affected the fairness of defendant's trial (either in fact or in presumption of law) we consider it our duty to treat such questions as moot.

The same reasoning applies to the ex parte hearing held by the Master Commissioner on August 3, 1971. ¹²

It is also contended that defendant had no opportunity to consult with counsel prior to arraignment, at which time he signed a written waiver of jury trial, characterized in the motion to correct errors as a 'waiver (which) was not, and could not, have been freely and intelligently waived since the defendant had not had a prior opportunity to consult with counsel'. Whatever weight that assertion might otherwise carry is weakened by the fact that: 1) it is not verified; 2) the waiver is witnessed by the Public Defender who entered his appearance that same day and represented defendant in his cour trial which took place some five weeks later. Absent any indication to the contrary we must presume that defendant and his Public Defender conferred at least once in preparation for the trial and that his attorney made certain that defendant understood his right to a jury trial and his right to waive it as well as his right to apply to the court to be relieved of the arraignment-day waiver if he wishes not to be bound by it. ¹³ No such request having been made and no reason being suggested for not raising the question of the validity of the waiver prior to trial, we perceive no error on the trial court's part in rejecting it when first asserted in the...