Turner v. State
| Decision Date | 04 June 1987 |
| Docket Number | No. 785S296,785S296 |
| Citation | 508 N.E.2d 541 |
| Parties | Ronald D. TURNER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Benedict F. Marnocha, South Bend, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant, Ronald Darnel Turner, was convicted by a St. Joseph Superior Court jury of rape, a class A felony, robbery, a class A felony, and burglary, a class B felony. The trial court sentenced Turner to thirty-five (35) years for rape, ten (10) years for robbery, and ten (10) years for burglary. All three sentences were to be served concurrently. In this direct appeal, Turner raises the following issues for our review:
1) the trial court's lack of jurisdiction over Turner;
2) prosecutorial misconduct;
3) the trial court's refusal to grant Turner's continuance on the day of the trial; and,
4) ineffective assistance of counsel.
The evidence favorable to the jury's determination of guilt is as follows. The victim, while at work, received a phone message supposedly from her son who was at school. The message was that he needed a school book left at their home. The victim returned home to retrieve the book at approximately 11:30 a.m. that morning. As she was about to leave the house, she was confronted by a man wearing a mask and wielding a knife. The man tied her to the bed, covered her eyes and mouth, and demanded money. The victim indicated she had $4.00 in her purse. The man left the room but returned a short time later. He removed the victim's clothes and raped her. Before he left, he said, "That will teach your son to take $19.00 from me in a crap game."
The victim freed herself and called the police. She told them she recognized the voice and build of the man who raped her. She had no doubt it was Turner. She also indicated that $4.00 was missing from her purse. When interviewed by the police, the victim's son admitted he had won about $19.00 from Turner playing pool a few days earlier. A police investigation revealed that Turner was absent from morning classes on the day of the rape. Turner returned to classes that afternoon wearing the same clothing the victim said he was wearing when he raped her.
Before considering Turner's specifications of error in the trial court, we first consider the State's Motion to Strike Appendix to Appellant's Brief. The Appendix contains what appears to be photocopies of documents and transcripts from the Superior Courts and the Probate Court of St. Joseph County. Turner was originally charged as an adult in the Superior Court of St. Joseph County. After five months, Turner pointed out to the court that he was under sixteen (16) years of age at the time this crime was committed and moved to dismiss the cause since the Superior Court lacked jurisdiction. The Superior Court accordingly dismissed the action. Two weeks later, the State filed a petition alleging delinquency in the Probate Court, which is also the Juvenile Court of St. Joseph County. The State also filed a request for authorization to file delinquency, which was granted, and a Motion for Waiver of Juvenile Jurisdiction, also granted by the Juvenile Court after a waiver hearing. The appendix in question filed with Appellant's Brief, contains filings and docket sheets from the Superior Court in the action which was dismissed, and the actions taken in the Juvenile Court.
None of these documents and transcripts are certified by any court nor is there any showing that they are a part of the record of this cause. The State's position in its Motion to Strike is that these materials are not a part of the record of proceedings of this cause and are not proper materials for this Court to consider in an appeal. We agree with the State on this issue.
It is the duty of an appellant to present a record that is complete and that supports his claim of error so that an intelligent review of the issues may be made. Berry v. State (1985), Ind., 483 N.E.2d 1369, 1373; Murray v. State (1985), Ind., 479 N.E.2d 1283, 1286. An appellant must see that the record of proceedings contains all pleadings, papers, and transcripts of testimony which disclose and have any bearing on the error he is alleging. Any error alleged but not disclosed by the record, or any matter not contained in the record, will not be a proper subject for review. Averhart v. State (1984), Ind., 470 N.E.2d 666, 683, cert. denied 471 U.S. 1030 105 S.Ct. 2051, 85 L.Ed.2d 323; Tabor v. State (1984), Ind., 461 N.E.2d 118, 126. See also Ross v. State (1978), 268 Ind. 471, 376 N.E.2d 1117, cert. denied 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50.
The material contained in the Appendix had not been properly made a part of the record of proceedings in this cause pursuant to Appellate Rule 7.2 and therefore is outside the record in this cause. They therefore cannot be used to show or support any allegation of error. In responding to the Motion to Strike, Turner supports the propriety of the Appendix by citing Appellate Rule 8.2(A)(4) which allows for the filing of an appendix with a brief for "submission of record or other material deemed useful." It is clear this rule contemplates the submission of record material or material deemed useful that may be placed in an appendix to a brief that is a part of the proper record of proceedings and is properly filed and certified by the clerk and the judge. The Motion to Strike is therefore granted and the material contained in the Appendix and any reference to it in the briefs will not be considered in disposing of this case on the issues presented.
Appellant claims the trial court lacked jurisdiction over him because of the sequence of the events in which he was originally charged as an adult in a cause which was later dismissed and followed by the initiation of this action in the juvenile court. At the time these charges were originally filed in the Superior Court, Ind. Code Sec. 31-6-2-1(d) (Burns 1985) provided that juveniles sixteen years or older were to be charged in adult court for certain crimes. Rape was one of the designated crimes in the statute. Apparently the police and the Prosecutor thought Turner was sixteen at the time the crime was committed and thus, charges were filed against him in the Superior Court rather than in the Juvenile Court. However, Turner was two weeks shy of his sixteenth birthday at the time he was charged. Five months after the charges were filed, Turner brought this fact to the attention of the Superior Court and without objection by the State, the court dismissed the action. Two weeks later, the State filed a petition in the Juvenile Court alleging delinquency pursuant to Ind. Code Sec. 31-6-4-9 (Burns 1985). After a preliminary inquiry the State requested authorization to file a delinquency petition and that request was granted. The State then filed a Motion for Waiver of Jurisdiction and after an evidentiary hearing the Juvenile Court waived jurisdiction to adult criminal court pursuant to Ind. Code Sec. 31-6-2-4 (Burns 1985). The State then proceeded by filing this action in the form of an information in the St. Joseph Superior Court, charging Turner with rape, robbery, and burglary.
Turner's claim of lack of jurisdiction in the Juvenile Court is based on his contention that since this cause was originally filed in adult court where that court had no jurisdiction to try him, there also was no jurisdiction in the Juvenile Court and the Superior Court pursuant to a waiver by the Juvenile Court. There is no merit to Turner's position. In support of his contention he cites this Court's opinion in State ex rel Atkins v. Juvenile Court of Marion County (1969), 252 Ind. 237, 247 N.E.2d 53. The holding in Atkins is not dispositive of this case. In Atkins, the Prosecuting Attorney took matters involving high school students before a criminal court Grand Jury which returned indictments against Atkins and others. The criminal court then transferred the indictments to the Juvenile Court. We held it was improper for the Prosecutor to seek, and for the Grand Jury to return, indictments against persons known to be under eighteen (18) years of age unless the case was within statutory exceptions. Id. at 242, 247 N.E.2d at 56. The Court further held that such an indictment or affidavit is a nullity and gives the criminal court no jurisdiction over the persons named in the case, including the lack of jurisdiction even to transfer the cause to the juvenile court. Id. Atkins provided that all actions of the criminal court were a nullity including the transfer and therefore the juvenile court did not obtain jurisdiction to act in any matter with regard to the indictments. Id.
The instant case presents entirely different facts and circumstances. When Turner demonstrated to the Superior Court in the original action that it lacked jurisdiction, the court dismissed the action. The subsequent filing in the Juvenile Court was not a continuation of the original action in the Superior Court, but was an independent filing pursuant to the laws and statutes providing for charging delinquency in juvenile court. Turner does not claim nor does he show that improper procedures were used in the institution of the action in the Juvenile Court thereby giving that Court jurisdiction over Turner. The only claim Turner makes is that he was not properly waived by the Juvenile Court to adult criminal court. The record contains the Order of Waiver of the Juvenile Court and it appears to be in proper order. Again, Turner does not show that the Juvenile Court failed to comply with the statutes and the law in ordering waiver. Turner's argument attacks the trial judge's determination that the facts and circumstances warranted waiver. This was a matter within the discretion and determination of the trial judge and presents no viable issue for ...
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