*1 v. Gardner aggravating circumstances. Ind.,
State, (1979) 517. judge making the guide
To him to our
required findings we refer v. decisions Green
recent remand) (review
Ind., 424 аfter N.E.2d Ind., N.E.2d Page v. remand). (review after trial court
The cause is remanded to the findings, if that it make
with instructions imposition
any, supporting the of consecu- alternative, or, in the re-sen-
tive sentences terms. to concurrent
tence N.E.2d
Green respects judgment of In all other
the trial court is affirmed.
GIVAN, DeBRULER, J., and HUNT- C. JJ., PIVARNIK,
ER and concur. (Defendant AKINS, Appellant
Michael Below), Indiana, Appellee
STATE Below).
(Plaintiff 580S127.
No. of Indiana.
Supreme Court 22, 1981.
Dec. 9,1982.
Rehearing Denied March
tions, unavailability who of witness been the information. had not named deny- Whether the trial court discharge ing Defendant’s motion for delay bringing to trial. him *3 (3) Whether the trial court erred in ad- mitting autopsy photographs into evidence. (4) Whether the trial court erred in ad- mitting published into evidence a ballistics accompanying testimony and article expert, over the ballistics defend- State’s objection hearsay. of ant’s court in ad- Whether the trial erred mitting at- evidence of certain statements decedent, to the over Defendant’s tributed objection hearsay. of (6) Whether court in ad- the trial erred mitting physical certain evidence taken time the at the of his ar- from defendant rest, objection over his that his warrantless unsupportеd by had been unlawful as arrest cause. probable (7) Whether court in ad- erred mitting tape recordings into evidence transcriptions over written statements and objection hearsay. Defendant’s of (8) Whether was to a Defendant entitled upon discovery that a wit- new incompe- had been to be ness determined upon an tent to stand trial unrelated charge. in re- Whether the trial court erred
fusing give in- to Defendant’s tendered duty was the advising struction of jury the the to reconcile all evidence with innocence, if Evansville, presumption possible his Berger, appel- the of L. for Charles to resolve in his favor. doubts lant. Pearson, Gen., guilty Whether the verdict was sus- Linley Atty. E. Carmen L. Gen., by the evidence. Quintana, Deputy Atty. Indianapolis, tained appellee. for I PRENTICE, Justice. Defendant contends that trial court (Appellant) was convicted of Defendant granting motions erred two State murder, (Burns 1979) 35-42-1—1 § Ind.Code continuance, of for both which thirty (30) of and was sentenced a term upon unavailability of premised a mate-
years
appeal
imprisonment. This direct
ap-
position,
witness.
It is his
rial
following
upon
issues:
seeks review
witness,
peal, that the name of the
Mildred
Southward,
upon
had
endorsed
(1)Whether
not been
trial court
continuances,
mo-
Ind.Code
35-3.1-1-
granting
§
the State’s
information and that
2(с),
grant
compel
proscribes
compliance
therefore
statute
wit-
with
requirements,
continuance for the State.
ness disclosure
stat-
is, itself,
provision
ute
a
sanctions
arraigned
Defendant was
on March
failure to disclose. The action appropriate
right
expressly
1979. He
waived his
to a
appellate
when,
here,
for an
trial”,
“speedy
and the matter was set for
trial court
impose
has refused to
the sanc-
trial for June
1979. On June
tion must be determined in context.
State filed written motion for
continu
ance,
unavailability
because of
The defendant was taken into custo
Southward,
and it
on
June
dy
January
on
charged
1979 and
on
objected
grant
1979. The
February
19th,
July
2nd.
the State
continuance,
of such
reason of the
supplement
July
filed a
to its
13th motion
but, rather, upon
statutory proscription
alleged
and therein
that Defendant had
cоntention that
was not a
Southward
mate
name,
known
and anticipated
address
*4
testimony
rial witness and
the
to
that
be
testimony of the witness since March 2nd.
anticipated from her was available from
Although
not,
brief,
he
has
his
acknowl
other witnesses. The issue which the de
edged
self-serving
the
the
correctness of
present, therefore,
fendant here seeks to
is
allegation,
disputed
neither has he
the
State,
not
for
available
review. Phelan v.
allegation
State’s
of such
set
information
(1980)
-237,
406 N.E.2d
Bell v.
event,
forth in its answer brief.
In
it
a upon further continuance same grounds i.e., urged appeal, in this Ind.Code assigns Defendant as error the also denial 2(c), § which is as follows: discharge, of under 35-3.1-1— his motion for Ind.Rules Indictment, information,
“An or shall delay bringing of in Cr.P. reason upon have stated of it names all the premises his him to trial. He entitlement material Other witnesses may jail, witnesses. discharge uрon both a detention in state, subpoenaed by afterwards be trial, period a six without for excess of but unless the of a name witness be stat- (6) filing charges of months from ed on the or indictment information at seventy (70) days upon delay in of a excess filed, it is no time continuance shall bringing following filing trial him to his to the state on account of the early of a motion for an trial. absence of such witness.” 4(A) provision only Rule makes Criminal Assuming it wаs error that for the release own for the of accused his continuance, grant in view delay recognizance in excess of for six statute, necessarily of the does follow in bringing months him to trial. It does not required. Although a reversal is a provide discharge. for continuance under such circumstances proscribed, 4(B)(1) provision provide makes no Criminal Rule does statute per discharge delay seventy for purpose sanctions se. The for in excess of (70) days filing immediately following from the date of a motion her murder. But However, early they no solely trial. there was were not rendered inadmissible delay they gruesome such here. It is Defendant’s claim on basis that early repetitious. State, that he made his trial motion on June Brandon v. but the record does not bear him photographs Ind. N.E.2d 504. The out. The record of June 8th is as follows: evidenced thе cause of death and that “The defendant indicated he will file a mo- decedent had sustained numerous wounds. withdrawing tion waiver effective this date defendant, did not demonstrate that * * trial; speedy presume We photographs these pas- would inflame the expression was an of an intention to with- jury. sions of the Without an imbalance waiver, previously draw the mentioned showing between this relevance and a clear herein, arraignment. voiced at the How- tendency jury improp- influence the ever, way knowing we have no which of erly, the trial court’s determination will not provisions of Criminal Rule 4 he had be disturbed. Bates v. Assuming waived. the initial waiver Ind. right was of his early to file motion for an trial, withdrawal, most, its would ISSUE IV only right have reinstated his to file such Defendant contends motion. It would not have eliminated the admitted, improperly objec over his .court necessity part for affirmative on action his “hearsay,” tion of State’s Exhibit No. 67 running to commence the of the time limi- Althoff, and the of John which 20th, tation. The July motion was filed on *5 asserts, testimony, dependent upon he seventy day period and the expired on the exhibit. Althoff was a member of the 29th, August August 17th, rather than on Evansville Police Crime Scene Technical contended, as and Defendant’s motion for by Unit and was offered the State as a disсharge August filed on 1979 was expert. Apparently, ballistics’ conclu properly overruled. were, least, sions part drawn him at We note that the trial did not commence dependent upon the content of Exhibit No. 1, 1979, until October and the record is not 67, which was an article entitled “Identifi respect clear with to other trial date set- cation of .22 caliber Rimfire Ammunition tings However, and continuances. the error Suitable Gunshot Rеsidue Determina assigned respect with to Criminal 4Rule is tion” police and had been taken from a addressed to the trial court’s action in over- laboratory periodical. appears It from the ruling discharge the motion for filed on meager given information to us that August appear 21st. It does not that there However, court erred. we have not been respect issue delays with that apprised of the contеnt of Althoff’s testimo subsequent occurred filing to the of that ny or prejudi the content of the exhibit. If 20th, motion. August We also note that on occurred, cial error had it has not been parties agreed vacating to the presented by Defendant’s brief. Before September 10th trial date and a trial set- reversal, appellant is entitled to a he must ting of October 1st. On this state of the affirmatively show that there was error record, we find no error. prejudicial rights. to his substantial He must show how he was harmed. We will III ISSUE grounds not search the record to find autopsy photographs Seven were admit- Clore, Ind.App. reversal. Ross v. objection ted into evidence they over 548, 74 brefing N.E.2d 747. Our rules on jury would inflame the minds argument pro make it clear that the must they repetitious. showing vide a clear of how the issues and The photographs question support are contentions in оf them relate to the unpleasant they depict to view particular the na facts of the case under review. 8.3(A)(7). and extent of wounds of the ture decedent Ind.Rules A.P. eyewitness
We also note that there was admitted. He has not articulated how he testimony that the Defendant shot the de- was harmed the admission of such evi- cedent. dence. For all that we can discern from the
brief, the evidence merely have been V undisputed cumulative of other proper- evidence, ly State, admitted Jackson v. Defendant next contends that (1980) Ind., 402 N.E.2d or such as to overruling pre-trial his mo- have made no contribution to the verdict. tion-in-limine addressed to. statements at- v. Candler 266 Ind. tributable to the decedent and in admitting N.E.2d statements, trial, evidence of such over “ * * * objection they
his
constituted inadmis-
always
Error must
predicat-
hearsay.
sible
We decline to сonsider these
wrong ruling,
ed on a
wrong
but a
ruling
assignments for several reasons.
invariably
does not
constitute [reversible]
improper
error. An
decision will not fur-
ruling upon
The
the motion-in-
nish a basis for reversal where there is no
limine is
upon appeal.
not reviewable
room for the inference that
proba-
it was
office of such a motion is not to obtain a
bly prejudicial.” Coppenhaver
State,
v.
ruling upon
final
admissibility
of еvi
the motion to correct errors. Finch v. 264 Ind. VI ISSUE Edwards v. Defendant next contends that
N.E.2d 730. The motion to correct errors
improperly
admitted into evidence the
did not
rulings
address the court’s
in admit
particles
defendant’s
ting
coat and
removed
testimony
assigned
at trial
only
but
clothing
articles,
from his
from which these
overruling of the motion-in-limine.
defendant,
according to the
had been seized
If the admission of the evidence
pursuant
to an unlawful arrest.
we,
properly
nevertheless,
were
before us
The Fourth
permit
Amendment
does
would be unable to review the claim. De
a warrantless arrest and search in the ab-
charges
fendant
that the statements attrib
probable
sence of
cause. New York v. Bel-
utable to the
through
decedent came in
ton, (1981)-U.S.-,
not,
mouths of
S.Ct.
six witnesses. He has
how
ever,
L.Ed.2d 768. This
proba-
Court has
pages
transcript
cited us to the
in the
defined
identifying
ble cause to be
objec
“those facts
and cirсum-
tions. He
length upon
arresting
has dwelt at
stances known to the
the rule
officer that
evidence,
not,
hearsay
but he has
in the would warrant a reasonable man to believe
argument
brief,
portion
apprised
of his
that a
us
crime had been committed
of the
hearsay
suspect.”
content of the
statements or
Pawloski they
of the context in which
were made and
In this order, exhibits, deposition were the the The the decedent arrived at relatives of Smith, testifying as a carry who was hospital shortly after the ambulance of Clarence witness; unsigned typewritten Upon question an ing body had arrived. State’s her transcription a hospital, purporting to be ing by security guard at the each statement a po- previously given to the group in an excit a statement desсribed member of witness, Smith, recording tape manner that he be lice spontaneous ed statement from had killed the dece lieved the defendant aforementioned typewritten transcription was security guard testified which the The later dent. made, signed previously hearing and a statement suppression that he had believed witness, Suggs. police by persons given who had said three or four of these actually the shoot they had witnessed apparently The exhibits were offered Furthermore, guard known ing. had appears impeachment purposes. Defendant these informants was a reliable that one of argue proper no there had been occasion, officer, who, upon had police impeachment laid. foundation arresting capacity. guard The served in an assign- Again, we are unable to review this opportunity to ac therefore had had an ment, apprise as the brief does not us of mutually quaint himself with the corrobo (which of the exhibits we under- content rating and to assess their state informants statements) their admis- or how stand surrounding ments and the circumstances the defendant. sion have harmed concerning decision them. An immediate an arrest was called for when the defendant VIII hospital. at the appeared on the scеne next contends that the court Defendant refusing grant a new trial fol-
Although the Fourth Amendment important lowing discovery that an safeguards for defend provides reasonable incompe- witness had been declared ants, quick State’s it is also tolerant of ad-hoc trial in his own unrelated case. tent to stand judgments by arresting they officers when act, prudence, with reasonable caution and February the Defend probable sufficient upon their belief that filed a motion to correct errors. ant cause exists to arrest the defendant. Unit day, Suggs, the witness Robert who next Robinson, ed 414 U.S. States given testimony supporting the had 467, L.Ed.2d 427. 94 S.Ct. case, incompetent was to stand declared to a state trial and was then committed suspect An arrest of a based hospital. thereupon Defendant filed a mo un probable cause is a reasonable intrusion of this for a new trial on the basis tion Amendment, der the Fourth fol Suggs newly discovered evidence clothing lowing search of needs no further *7 was, Suggs there insane. He asserted Edwards, justification. v. United States testify trial. incompetent to at his fore 800, 1234, 94 39 U.S. S.Ct. 415. Florida, (1973) v. L.Ed.2d 771. Gustafson that the tests for It must be first noted 38 L.Ed.2d U.S. S.Ct. competency competency and for to witness Ind., Hatcher v. things apart. The witness stand trial are incompetent testify, although was not to Ris subject сredibility might to scru- have been the arrest of the defendant was Since tiny. proper which followed and custodial search reasonable, it there was no error in determining The criteria for wheth admitting these exhibits. by one is entitled to a new trial reason of er newly discovered evidence are set forth in VII State, 399, 407,
.
v.
Emerson
exhibits
ISSUE IX “(c) information, An or shall have stated it the names the of all substance of defendant’s ten The material witnesses. Other witnesses by dered instruction was covered instruc state, subpoenaed by afterwards be given by tions Nos. 6 and 7 the court. name of but unless the a witness be stat- supported These instructions were ed on or at the indictment information stated correctly evidence in record and filed, the time it is no continuance shall Spears law. the state to on account of the was, therefore, It N.E.2d 331. not error to such absence of witness.” Ind.Code give the in refuse to defendant’s tendered 35-3.1-l-2(c), supra [emphasis § added]. struction. emphasized In language, the face of disputable. is not ISSUE X court’s error sufficiency concern, however, Defendant’s of the evidence My primary is with the challenge presumes improper admission majority rationale which the deеms test, hereinbefore fear, of evidence noted. error Its I harmless. is no test (c). all and the essence of erodes subsection in view of our However determination alleged contrary such errors to Defendant’s always It is true that a will continuance contention, challenge is without foun- provide opportunity a defendant with the to dation. prepare for the of a material not been witness who has listed on judg- no We find reversible error. The finding In the error information. harmless ment trial court of the is affirmed. basis, majority on this characterizes “(c)” designed as subsection establish J., GIVAN, C. and DeBRULER and PI- requirements.” “witness disclosure VARNIK, JJ., concur. wit- responsibility The to reveal material HUNTER, J., opin- concurs in result with however, charging instrument, nesses in the ion. component range merely is of a broad one HUNTER, Justice, result. concurring in imposed of disclosure duties on thе state 35-3.1-1-2, supra. Ind.Code majority’s § I concur in the resolution X, through II as well result Issues as the array of information which the state ultimately rendered I re- Court. required is disclose serves to insure join decline spectfully analysis which charge fully apprised majority employed disposition has in its against him, well as the sources of testi- however; I, analysis of-Issue concerns mony prohibi- upon which is based. The defendant’s contention that thе trial court against ability tion the state’s to obtain *8 erred when state’s motion ma- continuance based on the absence of a a continuance based on the absence not listed on terial witness the information material witness which the state had failed statute; significantly, is the “teeth” charging to list on information. only it is the available to a defend- sanction compliance require- I note with Initially, majority prefaced has ant to enforce on analysis its of the claim with caveat ment that witnesses be listed material “Assuming charging it was error instrument. for the trial prejudiced by way in precedent, case is so virtue of our
That repeatedly that a we have held virtue of the continuance. wherein permitted to testi- witness material rationale, the basis of this On though has failed to list fy even the state granting court’s error continuance instrument, charging her name on the his or Consequently, I concur in was harmless. See, e.g., Denton required statute. majority the conclusion of the that defend- 539; 246 Ind. ant’s conviction should be affirmed. Stevens in result. Concur (1921) Ruffenbarger v. N.E.2d cases, N.E. 514. In those on the predicated we have our conclusion consequence noncompliance only of
fact the requirements witness disclosure
with the a continuance.
that the state cannot obtain compliance perpetuate order tо with
In requirement
the witness disclosure any opportunity for abuse and
foreclose statute, gamesmanship in the a stricter bur- MORLAN, Appellant, Jack L. placed to show den should be on the state erroneously granted continuance does .v warrant reversal. The state should be not Indiana, Appellee. of STATE showing: required to bear the burden of was in fact “material” and the witness No. 880S352. in na- presented not cumulative ture; Supreme list the witness on Court of Indiana. the failure to charging instrument was inadvertent or Dec. justifiable; delay otherwise dilatory tactic and was obtained was not beyond by circumstances
necessitated conjunction with the re-
state’s control. In satisfy
sponsibility the state to these
considerations, per- the defendant should be how, all, delay
mitted to show if at presentation of his case or oth-
harmed his prejudiced case-by-case him.'
erwise
basis, test, balancing with its focus on the harmless
the state’s burden to establish precipitated,
nature of the error it has require- insure the witness disclosure
would 35-3.1-1-2, supra, re-
ment of Ind.Code § meaning enforceability.
tains
Here, the record reveals that Mildred was a material witness
Southward shooting-at-issue.
she witnessed the She
was not listed on the information because a material witness had not
her existence as until after the
been discovered the state
charge filed. And her absence had been by the
was necessitated fact Southward’s
hospitalization major surgery, and need beyond
a circumstance the state’s control. addition, does indicate
In. the record