*1 CONCURRING OPINION Garrard, majority J. support differ,
reasons the rule same criteria apply parents depriving apply adoptive parents to natural custody.
Here,
required
special findings
the court was not
to make
request
party.
in the
absence of
either
Indiana Rules
Procedure,
Trial Rule
Franks Franks
Accordingly,
678.
since the
con
record
probative
tains substantial evidence of
value from which the
trial court could have concluded that Mrs. Stevenson was
unfit,
judgment
should be affirmed.1
Reported at
Note. — Curtis Henderson State of Indiana. July 6, Rehearing August 3, Filed [No. 3-1275A279. 1977. denied 27, 1977.] Transfer denied December judicata argument inapposite I would find res since all the question adoption proceedings conduct in pleted. occurred after the were com- appellant. Bend, for Burke, James E. of South *2 Davis, Attorney General, Sendak, L. Susan J. Theodore General, Attorney appellee. for Deputy con- P.J. After Curtis Henderson was Staton, committing felony armed, a sentenced was victed period ten Department of for a to the Indiana Correction years. appeal Court, four errors (10) In his to this he raises errors, carefully have considered these for our review. We none of them constitute reversible error. and we find that affirm.
I. Information Amended began, July day was trial the State before On by Two1 of the Information allowed to amend Count by inserting ‘While’ after the word . interlineation “. . aiding person present, following phrase, was ‘Another felony assisting and was’.” the commission such placed Information contends that Amended posture: now in different defensive the State was him a holding dangerous argue going that Henderson was to involved and weapon, rather that another individual was but participated in Hender- present and the crime. a requested at son, July a continuance “for least properly prepare for to period one week changed substantially na- this amendment] feel [the against charges The motion defendant. ...” ture of the continuance surprise; lack of Hender- court based its denial The trial reports knowledge police which referred had son holding weapon for “more than seven weeks.” confederate duplicity” day. was stricken “as the same Count One agreed that, change “It wouldn’t the evidence . . charged allegation specifically but [Henderson] thing yesterday allege of one was amended to another thing.” (Burns provides
IC Supp. 1976) perti- 35-3.1-1-5 part: nent “(b) matters indictment information amended by upon substance formor court,
notice to the defendant with the consent of the any arraignment. time before When the information amended, signed by prosecuting indictment it shall be attorney.
% ^ v H* H* sfc “(d) other than Before amendment indictment or information provided amendment (b) subsection of this section, give parties adequate the court shall all notice opportunity amendment and intended be heard. Upon permitting amendment, shall, such the court by defendant, any adjournment post- motion ponement order proceedings may, reason such *3 of of amendment, opportunity necessary be adequate to accord the defendant prepare to his defense. “(e) Notwithstanding any provision section, other in this an indictment or any shall not be amended in information respect changes theory prosecu- which or theories of originally stated, changes identity tion as of may charged; nor crime indictment be information arraignment purpose amended curing after for of to legal or state a insufficiency crime or failure allegations.” (Emphasis added). factual not notice, did receive actual his motion continuance Additionally, Henderson contends notwithstanding surprise, that changed the amendment theory prosecution originally as stated. (a) State that under IC 1971, 35-3.1-1-5
(9) an amendment “any allowed time for . . .
defect which does not the substantial rights of the defendant.” We find that Henderson’s rights” and, “substantial not prejudiced, were more over, that the statute does not mandate a continuance. sen- the second ‘shall’ in “Lemont contends that word motion, that mandatory, upon
tence makes it defendant’s view, how- It is our the trial court order continuance. contin- ever, implementation word ‘shall’ is that the of the ‘neces- gent continuation is upon a that such determination integrity sary’. of the Further, it is our view that the defendant, be judge, process not a the trial demands necessity. in- therefore It is the arbiter cumbent of what constitutes satisfaction a defendant to demonstrate necessary, judge the trial that a continuance is upon a clear only the decision of the trial court will reverse Lemont v. .” discretion. . . abuse App. examining In the amendment a material whether change rights may prejudiced substantial have cognizant Henderson, we are of the fact that under IC (Burns “[ejvery person Ed.), 35-1-29-1 Code aid who shall charged felony or abet in the commission . . . . and convicted in same manner were a . tried principal. . . .” Cline Wimes To that would be immaterial whether extent gun. The continuance held the denial of the
had prejudicial error.
II.
Prosecutorial Misconduct
portions
attention
four
directs our
prose-
closing argument.
prosecutor’s
He
contends
guilt
jury.
gave personal opinion
of Henderson’s
cutor
for mistrial was denied.
Henderson’s motion
opinions
aof
defendant’s
or innocence
Prosecutorial
prejudicial
improper
opinions
unless such
include
are
*4
they
solely upon
proviso
the evi
are based
Swope
dence.
870) ;
(U.S. cert. denied 423
U.S.
Garrett
App. 426,
line
between
impermissible
a thin
and
is
may express
personal opinion
Neither advocate
his
one.
justice
veracity
of his cause
.”
witnesses.
. .
Mayes
In argument, expressed disbelief bolstered, Henderson’s alibi opinion witness statement, credibility of the State’s witnesses. “Vickie Husband [alibi recalls date was the witness] 6th, I 6th, think it don’t event she testi- happened they
fied ever happened, they hap- all. If pened other than on the 6th.
v [*] ^ [*] [*] any question “. . . I don’t think is there whatsoever recognized those four Tyrone men the store Hender- they recognize today, son then and him is one the same man. don’t slightest I think there is even the shade of doubt on that fact.” addition, prosecutor
In commented on Henderson: Tyrone “I trying think to extricate himself desperately very unpleasant from a playing situation and think he is a little fast and loose with the truth. .” . . later, “I think inwas the store on November 6th. . . And, stated that “Mr. Burke [defense counsel] would a, characterize Mr. Henderson as some kind of freak something.” statements, To these last imme- diately objected. prosecutorial
We note that the existence misconduct does necessarily constitute Mayes, supra. reversible error. “In the absence of a clear part court,
breach discretion of the trial judgment will not be set aside because aof charge misconduct Soucie v. of counsel.” 215, 219, Robinson N.E.2d 409, among states that determining necessity declaring considerations made *5 on had been action a mistrial is “whether there deliberate present improper part the matter the counsel testimony objectionable or misconduct or not the whether repeated.” had been closing began argument, he ad- his
When the by jury saying, dressed may argue prosecutor] “. . . we counsel and [defense my thus and so recollection
the evidence the evidence is based showed pretty my , notes . . . but much say I showed if at time what believe evidence your from what recollection what a witness differs or is of said rely said, your own recol- then that witness what you mis- I have than mine. feel lection rather [I]f your evidence, rely of who quoted own memories said what.” they prefatory proper, and demonstrate remarks were
These prosecutor. Hender- the lack of deliberate misconduct resulting from clear son has made no making remarks, though prosecutor erred in such statements, any harmless. error was
III. Flight Inference of County Joseph Jail on escaped from St. April apprehended on 1975, and was March July 1975, a in Limine: filed, Motion respectfully “WHEREFORE, requests the defendant counsel Joseph County Prose- the St. to instruct the Court him, working witness, not and his cutor, any to any information with counsel concerning, convey to, interrogate mention, refer directly indirectly, any jury, either manner alleged escape regarding from the St. County Joseph Jail....” in Limine Motion presented trial, State offered evidence After given by instruction, following which was court: - REQUESTED “STATE’S INSTRUCTION NO. 7 you You are instructed that find from the evidence escaped custody the defendant from the of the St. Joseph County being charge, Sheriff while held on this it you circumstance which consider in connection determining with all the other evidence in charged.” innocence of the crime objected to the instruction “on the that this basis State, is not apply law the nor does to the facts of *6 upon this case and it comments evidence in is this case which not material or relevant to issue in this case.” presents the denial of the Motion in Limine Requested and the of State’s Instruction No. 7 as two flight, errors. Since each relates to the of issue we treat them together. flight escape
Evidence of has been deemed admissible guilt. Layton of 205, the issue v. 251 Ind. 489; 561,
N.E.2d Thomas v. State 254 Ind. Miller v. App. 843. The escape N.E.2d reasons for weight flight given evidence, relate to the to be not its admissibility. Harms App.
Henderson would with these He asserts different, however, presents that situation is and he a problem which has before not confronted this Court. Hender- pending, son had escape at the time of his jail, from the two felony charges. argues other He that escape admission of the prove evidence was irrelevant since the State did not from charge escaping. Furthermore, he when the court Limine, Motion in denied the the State was able to benefit guilt from inference which resulted. Henderson com- plains could, theoretically, rebut this inference by explaining escape, the reasons for his sodo would neces- volunteering sitate his evidence other criminal activity; guilt this lead to further would inferences of possibly prosecution in the evidence which could used charges. other presume conviction here that Henderson’s We cannot pre flight And, alone. the instant based appeal a defendant sumption of does not follow innocence conviction, City (1971), 149 Evansville after Coates flight App. 862. We would N.E.2d guilt. Bradley alone not a reliable indicium 421, 427, flight, however, depreci evidentiary “. . The value substantially Supreme Court the face of decisions ated dangers unperceptive delineating reliance inherent guilt. longer hold flight no as an indicium of pur flee no man that ‘the wicked when tenable the notion righteous propo as lion.’ The sueth, are as but bold shortly after a criminal act is sition that committed because he feels ‘one who flees committing so he is accused of does when concerning that act’ is abso some legal of common it is matter doctrine ‘since lute as knowledge entirely innocent sometimes that men who are do through being appre fly hended of a crime fear the scene from unwillingness guilty parties, or from an omitted). (Footnotes (Quoting appear as witnesses.” from 1969], 1114- Bailey States 416 F.2d United [D.C. 15). Id. *7 denying Motion Limine in in court’s errors trial But the flight in this were harmless giving the instruction in which jury faced with other evidence because the case supported conviction. prejudice, this Court will clear
Absent a v. appeal. 170 Grimes a conviction reverse Viewing record, the entire 525, N.E.2d 500. in Henderson’s errors occurred that the conclude Larimer “beyond a reasonable doubt.” harmless were 279. Judgment is affirmed. result; Hoffman, J., concurs in re- J.,
Garrard, concurs opinion. sult with IN RESULT
OPINION CONCURRING Hoffman, J. I concur the result. properly
The motion in trial court denied the limine and gave REQUESTED “STATE’S INSTRUCTION NO. 7” with regard escape. flight escape being
Evidence that there was held charge always been admissible issue of Layton defendant. 489; Meredith v. State Anderson N.E. being The fact that defendant was also confined on other charges escape does not make evidence of To inadmissible. penalize so hold would a defendant confined on one charges. bestow benefit multiple defendant held on Such not the law. denying
The trial court
err in
did not
motion
limine
the instruction.
Reported at
R. Detwiler. July 7, Rehearing August [No. 3-375A40. Filed denied 1977.]