Wade v. State, No. 1078S233

Docket NºNo. 1078S233
Citation270 Ind. 549, 387 N.E.2d 1309
Case DateApril 12, 1979
CourtSupreme Court of Indiana

Page 1309

387 N.E.2d 1309
270 Ind. 549
Michael E. WADE, Appellant,
v.
STATE of Indiana, Appellee.
No. 1078S233.
Supreme Court of Indiana.
April 12, 1979.

[270 Ind. 550]

Page 1310

Joe Tipton, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was convicted of armed robbery and of inflicting an injury in the perpetration of a robbery. He was sentenced to life imprisonment.

Shortly after midnight on July 23, 1975, a black man with a stocking over his face accosted the attendants at Richard's Market Basket on East 52nd Street in Indianapolis. The intruder ordered one attendant to lie face down on the floor and then proceeded to tie the attendant's hands behind his back. The attacker then shot the attendant in the back. The bullet pierced the attendant's body between his liver and kidney. He was hospitalized for three months. The assailant then marched the attendant to the office, unlocked the door and removed about $3,000.00 from the office safe. The attendant identified appellant at trial as resembling the gunman.

Investigating police officers recovered a spent bullet and a spent casing from the scene. Appellant was later apprehended. A .32 caliber automatic pistol and four live shells were recovered when he was searched. A ballistics test by a police expert showed that the spent bullet was fired from the gun recovered from appellant. Detective Green of the Indianapolis Police Department interrogated appellant after the ballistics test was completed. Appellant first denied participation in the robbery and attempted to blame it on others. When he was confronted with those accused, he admitted that he had committed the robbery and shot the attendant.

Appellant first contends the trial court erred in overruling his motion[270 Ind. 551] for discharge under CR. 4(C). The information against him was filed on July 8, 1976; however, he was not served with the capias until October, 1977, as he was incarcerated in the Indiana State Prison in Michigan City. Rule 4(C) provides:

"Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing More than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later . . . ." (emphasis supplied.)

In the case at bar appellant was arrested on the charge on October 27, 1977, and was tried by jury on May 4, 1978. His incarceration from July, 1976, to October, 1977, was for a separate conviction and had no relationship to the charges in the present information. He was "held on recognizance" for this specific information only from October, 1977, through May, 1978. Appellant therefore was not entitled to discharge under CR. 4(C). Cooley v. State (1977) Ind.App., 360 N.E.2d 29.

Appellant further argues that he was denied his constitutional right to a speedy trial by reason of the State's failure to prosecute him promptly after the information was filed. Assessment of this right involves a consideration of the particular facts of each case, including the length of delay, the reasons for the delay, the defendant's assertion of his right, whether the State made a good faith effort to afford him a speedy trial and the degree of prejudice to the defendant. Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33...

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11 practice notes
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...jurisdiction, we necessarily defer to our Supreme Court. Wade v. State, a 1979 Indiana Supreme Court case, is not inconsistent with Gill. 270 Ind. 549, 387 N.E.2d 1309, post-conviction relief denied, 572 N.E.2d 498. In Wade, the charges were filed against the defendant on July 8, 1976, but ......
  • Wade v. Duckworth, No. S 84-653.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 17, 1986
    ...by, this court. A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, Wade v. State, 270 Ind. 549, 387 N.E.2d 1309 (1979), reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v.......
  • Lee v. State, No. 71S00-9605-CR-00310
    • United States
    • Indiana Supreme Court of Indiana
    • September 10, 1997
    ...on the defendant to prove a speedy trial deprivation." Scott, 461 N.E.2d at 143; Lahr, 615 N.E.2d at 153. See also Wade v. State, 270 Ind. 549, 551, 387 N.E.2d 1309, 1310 Defendant has not provided us with any demonstration of prejudice except a contention that the delay resulted in a trial......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • February 23, 1982
    ...the evidence the trial court could find that Defendant knowingly and voluntarily waived his Miranda rights. Wade v. State, (1979) Ind., 387 N.E.2d 1309, 1311; Niehaus v. State, (1977) 265 Ind. 655, 658, 359 N.E.2d 513, 514-15, cert. denied, (1977) 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188;......
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11 cases
  • Hornaday v. State, No. 49A02-9301-PC-2
    • United States
    • Indiana Court of Appeals of Indiana
    • August 22, 1994
    ...jurisdiction, we necessarily defer to our Supreme Court. Wade v. State, a 1979 Indiana Supreme Court case, is not inconsistent with Gill. 270 Ind. 549, 387 N.E.2d 1309, post-conviction relief denied, 572 N.E.2d 498. In Wade, the charges were filed against the defendant on July 8, 1976, but ......
  • Wade v. Duckworth, No. S 84-653.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 17, 1986
    ...by, this court. A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, Wade v. State, 270 Ind. 549, 387 N.E.2d 1309 (1979), reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v.......
  • Lee v. State, No. 71S00-9605-CR-00310
    • United States
    • Indiana Supreme Court of Indiana
    • September 10, 1997
    ...on the defendant to prove a speedy trial deprivation." Scott, 461 N.E.2d at 143; Lahr, 615 N.E.2d at 153. See also Wade v. State, 270 Ind. 549, 551, 387 N.E.2d 1309, 1310 Defendant has not provided us with any demonstration of prejudice except a contention that the delay resulted in a trial......
  • Allen v. State, No. 181
    • United States
    • Indiana Supreme Court of Indiana
    • February 23, 1982
    ...the evidence the trial court could find that Defendant knowingly and voluntarily waived his Miranda rights. Wade v. State, (1979) Ind., 387 N.E.2d 1309, 1311; Niehaus v. State, (1977) 265 Ind. 655, 658, 359 N.E.2d 513, 514-15, cert. denied, (1977) 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188;......
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