Williams v. State, 675S147

• Citation: 352 N.E.2d 733,265 Ind. 190
• Decision Date: 20 August 1976
• Docket Number: No. 675S147,675S147
• Parties: David Lee WILLIAMS and Henry H. Huntsman, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 733

352 N.E.2d 733

265 Ind. 190

David Lee WILLIAMS and Henry H. Huntsman, Appellants, v. STATE of Indiana, Appellee.

No. 675S147.

Supreme Court of Indiana.

Aug. 20, 1976.

Thomas L. Ryan, Deputy Public Defender of Allen County, Fort Wayne, for appellants.

Theodore L. Sendak, Atty. Gen., Arthur T. Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellants, David Lee Williams and Henry H. Huntsman, were found guilty on February 4, 1975, of first degree murder, murder in the perpetration of a robbery. Ind.Code § 35--13--4--1 (Burns 1975). Both Appellants were sentenced to life imprisonment on March 3, 1975. The Appellants filed separate Motions to Correct Errors, which were denied by the trial court on May 13, 1975. This appeal similarly presents separate arguments by the Appellants.

The evidence at trial revealed that Weston Hager, part owner of a gas station in Allen County, Indiana, was driven to the station by his wife on August 20, 1974, at about 10:00 a.m. Three of the couple's grandchildren were also in the car. They arrived at the station as it was being robbed by two men. Mrs. Hager was told to get inside the station, where several persons had been made to lie on the floor. Shots were heard by those in the station and, when she ran to her car, Mrs. Hager found that her husband had been shot.

The two men fled in a car after the shooting. A couple driving by was able to write down the license number of the fleeing automobile and gave it to police arriving on the scene. A description of the auto, its occupants, and the license number were given to the police dispatcher. A Fort Wayne fireman heard a subsequent broadcast describing the circumstances and vehicle. When he saw a car answering the description at a stoplight, he advised the city dispatcher and followed in his fire department automobile.

The car was followed to a Fort Wayne duplex. Police were notified and were admitted into the residence by Doris Jean Clowers, who lived there with Appellant Huntsman. She had been hiding in a closet at the Appellants' instruction. She gave police permission to search her apartment. Appellant Huntsman was apprehended coming out of a hole in the attic. He was advised of his rights. Appellant Williams was then found in the attic, was arrested, and was advised of his constitutional rights. Also found in the attic was a gun which was later determined to be the murder weapon.

The Appellants were identified at trial by four witnesses as the two men who committed the gas station robbery and shooting. When Appellant Williams was processed at the county jail he was told of the charges against him. He stated, 'Well I don't know what this is all about . . . or what's going on, but I'm guilty and I'm going to plead guilty.' He was told by police to 'shut up until he talks to an attorney.'

I.

Appellant Williams lists six issues as presented for appeal. One of these issues concerning 'thorough and proper voir dire' of a prospective juror, was not argued in the Appellant's brief. This issue is thus waived. Ind.R.Ap.P. 8.3(A)(7); Green v. State (1971), 257 Ind. 244, 274 N.E.2d 267. We will look only to the remaining five issues.

The first allegation of error argued by Appellant Williams is that the trial court erred in granting a State motion for continuance on December 9, 1974. We note at the outset that the December 9 motion by the State was a verified motion for 'continuance and joint trial setting.' On September 30, 1974, trial by jury for Appellant Williams alone was set for December 17, 1974. The December 9 motion was based in part on the unavailability of a prosecution witness and in part on the desirability of a joint trial. Joint trial was set for January 28, 1975.

Appellant Williams contends that this continuance violated his right to a speedy trial. We do not agree. Reliance here upon the speedy trial provisions of Criminal Rule 4 is misplaced. No request or motion for early trial pursuant to Criminal Rule 4(B) was ever made. The early trial provisions of Criminal Rule 4(B) are not self-executing. Gross v. State (1972), 258 Ind. 46, 278 N.E.2d 583. The January 28, 1975, trial date was within six months of the Appellants' formal arrest on August 29, 1974. The six month provisions of Criminal Rule 4(A) were thus also complied with.

The constitutional right to a speedy trial under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 12 of the Constitution of Indiana is, of course, not limited to these rule provisions. That right, however, is necessarily relative:

'* * * This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950. 'Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive,' Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393. '(T)he essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041.'

United States v. Ewell (1966), 383 U.S. 116 at 120, 86 S.Ct. 773 at 776, 15 L.Ed.2d 627 at 630--631.

This case presented circumstances which called for the action taken by the trial court. The Appellant points out that the purportedly 'indispensible' witness whose unavailability was asserted was not included in the State's list of witnesses, was not listed upon the information, and did not appear at trial. Indeed, the only effect of not stating the name of a material witness upon the indictment or information is to prevent the State from obtaining a continuance on account of the witness's absence. Ind.Code § 35--3.1--1--2 (Burns 1975); Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823. However, this was not the only ground upon which the State's motion for continuance was based.

The joining of the two defendants for trial in this case certainly necessitated a continuance. Appellant Huntsman pleaded not guilty and not guilty by reason of insanity. The record reveals that it is unlikely that his defense could have been prepared by the December 17, 1974 trial date. The period assigned for his pretrial discovery extended through December 13, and his case was originally continued until that date. A subpoena for medical records in the possession of the Texas Department of Corrections, requested by Appellant Huntsman, was not issued until December 11. Records of an examination by a Fort Wayne physician were not subpoenaed until December 27.

Appellant Williams does not argue that joint trial with his co-defendant was improper, nor was such an argument placed before the trial court. 'Ordinarily it is within the discretion of the trial judge in criminal cases to grant or refuse a continuance, and his action will not be disturbed in the absence of a manifest abuse of discretion.' 8A I.L.E. Criminal Law § 431 at 72 (1971). The same circumstances which indicate that the right to speedy trial was guaranteed here indicate that the trial court did not abuse its discretion. The delay here was only for a little more than a month. No impairment of the ability of the accused to defend himself is alleged. The promoting of judicial efficiency by a joint trial is not challenged. We can find no reversible error by the trial court here.

Appellant Williams next argues that four photographs, State's Exhibits Nos. 4, 6, 7 and 8, were improperly admitted into evidence. These exhibits were identified as photographs of the deceased taken after he had been moved to put a dressing on his back. The Appellant contends that because the body had been rolled on its side, the photographs were not a true representation of the person they purported to represent or of the facts surrounding the shooting. This misinterprets the role of accuracy in the admissibility of photographs:

'The role of accuracy in the admissibility of photographs was briefly put in McCurdy v. State (1975), Ind., 324 N.E.2d 489 at 496:

'As previously stated by this Court, 'For a photograph to be admissible it is first necessary to establish that it is a true and correct representation of the thing it intends to portray.' Johnson v. State (1972), 258 Ind. 648, 655--56, 283 N.E.2d 532, 536.'

Accuracy, then, relates to that which the photograph intends to portray. The photographs in this case were not intended to portray the precise posture of the victim after the crime. Rather, they were intended to show the general position of the body. Testimony revealed that the photographs were accurate in this respect. Moreover, the photographs were accurate in identifying the victim, showing the scene of the crime, and showing the nature of the victim's wounds.'

McFarland v. State (1975), Ind., 336 N.E.2d 824 at 826.

The photographs here were of probative value in elucidating and explaining relevant oral testimony. Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. Their admission into evidence was proper. We would add that, even if the exhibits here had been inadmissible, it is hard to see that these...