Willis v. State
| Decision Date | 29 October 1980 |
| Docket Number | No. 3-180,3-180 |
| Citation | 411 N.E.2d 696 |
| Parties | Curtis WILLIS, Appellant (Defendant Below) v. STATE of Indiana, Appellee (Plaintiff Below). A 3. |
| Court | Indiana Appellate Court |
John J. Halcarz, Jr., Hammond, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Curtis Willis appeals his conviction of robbery for which he was sentenced to five years imprisonment. The following issues are raised for review in this appeal:
(1) whether the trial court erred in not excluding certain evidence due to the failure of the State to file a timely answer to defendant's notice of intention to offer evidence of alibi;
(2) whether the trial court erred in denying defendant's motion to suppress the identification testimony of Louvene Adams; and
(3) whether the trial court erred in denying defendant's motion to suppress the in-court identification of defendant by Bonita Pindiak.
The evidence most favorable to the State reveals that on March 11, 1979 Bonita Pindiak was robbed of her purse by Willis as she exited from the passenger side of a car and walked toward her residence. At approximately the same time the driver of the car, Rose Dobrinich, was being threatened with a shotgun by another man. Dobrinich was told to exit her car and leave her purse, which she did. Dobrinich's assailant got into her car and drove away with Willis following in the car in which the two men arrived. Willis and a companion were arrested the next day while riding in Dobrinich's car. Pindiak and Dobrinich were asked to view a lineup. Dobrinich identified her assailant and Pindiak identified Willis.
Willis filed a motion to suppress both evidence of the lineup and any in-court identification of Willis by Pindiak. The trial court granted the motion only with respect to the lineup. Willis also moved to suppress any evidence contrary to what was stated in his notice of alibi, based on the State's delay in answering the notice until the day of the trial. This motion was denied.
Willis first contends that because the State failed to timely file an answer to his notice of alibi, all evidence showing that the defendant was any place other than that mentioned in the notice of alibi should be excluded.
IC 1971, 35-5-1-1 (Burns 1979 Repl.) provides:
IC 1971, 35-5-1-2 allows a defendant to expressly require the prosecuting attorney to file and serve upon defendant, or his counsel a specific statement in regard to the exact date when, and the exact place where, the defendant was alleged to have committed the crime. If such a statement is expressly required by the defendant, the statute provides that the prosecutor shall file and serve the statement upon the defendant or upon his counsel not later than eight days before trial. The remedy for the prosecutor's failure to serve the statement is provided for in IC 1971, 35-5-1-3:
"... At the trial, if it appears that the prosecuting attorney has failed to file and to serve upon the defendant or upon his counsel the prosecuting attorney's statement as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the prosecuting attorney, exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in the defendant's original notice...."
On June 25, 1979 Willis timely filed his notice of alibi which expressly required the statement from the prosecuting attorney. The State did not file the statement until July 26, 1979, the same day the cause went to trial. Willis moved the court to suppress any evidence which the State would try to present which would show that the defendant was any place other than what is mentioned in the notice of alibi. The trial court denied the motion.
In his brief Willis cites many cases in which a defendant was not allowed to present any evidence of his alibi after failing to file a notice or after filing a defective notice. These cases, however, do not address the issue here present of filing a proper notice or statement albeit untimely.
IC 1971, 35-5-1-3 provides:
"In the event of the failure of the defendant to file and to serve the defendant's original notice, as prescribed herein or the defendant's second notice as prescribed herein, or in the event of the failure of the prosecuting attorney to file and to serve the prosecuting attorney's statement as prescribed herein, the court may in its discretion extend the time for filing the same...."
The Indiana Supreme Court has held that such an extension of time is proper although a request by the State for the extension comes within eight days prior to the trial. In such a case the proper remedy for the defendant is not exclusion of the evidence, but rather a continuance. Reed v. State (1963), 243 Ind. 544, 188 N.E.2d 533.
In a case similar to the case at bar, Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745, the defendant contended that his right to a fair trial was violated by the State's delay in the filing and service of answers to defendant's alibi notice and by amendment of the State's witness list on the day of the trial. The Indiana Supreme Court there held that "(w)hile appellant's objections at trial were well grounded, the appropriate remedy was a continuance." Id., 333 N.E.2d at 751.
In the pretrial suppression hearing Willis's attorney was asked by the court if he desired a continuance. This offer was declined. Furthermore, Willis's attorney admitted that his client was not prejudiced by the delay in filing an answer inasmuch as he knew the specific time and place of the alleged crime through the deposition of Pindiak along with the probable cause affidavit. In light of these admissions and the refusal of the offered continuance, any alleged error has been waived by Willis.
The next argument advanced by Willis challenges the admissibility of testimony given by the State's rebuttal witness, Louvene Adams. Willis contends that the testimony should have been excluded as an "evidentiary harpoon" in that it placed before the jury improper evidence of an unrelated crime.
During defendant's case-in-chief Willis testified that he had met a friend at a bar late on Sunday, March 11, 1979, and had agreed to accompany him to his home in Michigan City. According to Willis, the friend's car broke down the next day while he was driving Willis back to his home in Miller, Indiana. Willis then hitchhiked to Gary. Willis testified that, upon arriving in Gary, he ran into another old friend, Eddie...
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Strong v. State
...conduct at the line-up are matters which go to the weight to be given her testimony and not to its admissibility. Willis v. State, (1980) Ind.App., 411 N.E.2d 696, 700. The defendant asserts another error which we think also merits reversal. Over the defendant's objection, the trial court a......
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