*1 record is majority that the The contends trial precise basis of the Danny RAY, Appellant-Defendant, clear as to
not J. trial agree. I The ruling. cannot court’s in the clearly expressed its court disbelief up to the leading account events State’s Indiana, Appelleе-Plaintiff. STATE stop. enough. reverse That We No. 48A02-9609-CR-593. only where
judgment of the trial court support no rea- uncontradicted evidence will Appeals Court of of Indiana. ruling. of the inference in favor sonable 1004, 1006 Jorgensen, May Hollins, N.E.2d (Ind.Ct.App.1988); see (stop justified where trial court at 430-31 trаffic
expressly found defendant committed violation). upheld previous trial court had traffic
The primary for the stops motivation where activity. stop investigate drug was to suppress because court did not the evidence stop pretext investigate was the traffic drug activity but rather because the State’s predi-
claim of a traffic violation as the lawful stop cate for the was not credible. erroneous, finding clearly and court’s was not judgment for we should not substitute our question. that of the trial on this judges who criminal preside Trial over required many motions dockets are to hear evidence, suppression that seek the eventually illegal they an will run across Stephen Bright, B. search or seizure. See Judiciary, Attacks on the 80 Judi- Political (1997). cases, if the In such cature oath, judge follows he is case, suppress еvidence. In Id. judge rarely granted noted that mo- he suppress.3 suppress tions to His decision the evidence in this was the result of his case judgment. I
Accordingly, would affirm the sup- granting court’s order Voit’s motion to press as a result of the evidence obtained
State’s warrantless seаrch. judge 3. The stated: Record at 104. grant grant? I this often will I don’t do — your enough guess grant I to know. it's mo- suppress. tion to *2 Hulse, Christopher Cage,
Thomas L. A. Anderson, Appellant-Defendant. for Carter, General, Attorney
Pamela Christo- Lafuse, pher Deputy General, Attorney L. Indianapolis, Appellee-Plaintiff. for
OPINION
GARRARD, Judge.
STATEMENT OF THE CASE Dаnny Ray appeals J. the trial court’s order that he held bail pending without charges Stalking on and Intimidation. We reverse.
ISSUE
Ray presents several for our issues review which we restate as one: Whether Ray’s it erred when bail revoked pending ordered him held without bail trial. FACTS AND PROCEDURAL HISTORY 1996, 26, July charged On Rаy the State with of Stalking, information one count felony, a Class D one Stalking, count of as a felony1, Class B and one count of Intimi- dation, felony. as a D Class The court issued Ray’s a warrant for arrest and set bail at $20,000.00. Following Ray’s arrest on the charges, Ray moved to dismiss the informa- alleged tion August based defects. On 26, 1996, during hearing on motion dismiss, State oral made an motion to Ray’s bail. increase The court ordered that hearing day. on be held the matter next 1996, Thereafter, 27, August parties on appeared hearing for on the State’s motion to hearing, During increаse bail. the State argued increasing the court that instead Ray’s bail, Ray without should be held bail. Ray argued State the fact had year stalking been one convicted earlier grounds same victim was revoke the Ray bail order and detain without pending agreed trial. The court with thе and ordered held pending appeals that decision. trial. felony charge stalking B as a Class is a against Code the same victim. See Ind 35-35- grade felony charge of the D (c)(2). enhancement Class 10—3 upon Ray’s prior stalking for conviction Indeed, (Wyo.1992). several Indiana cоurts AND DECISION DISCUSSION providing Article 17 as have cited arguments to the Despite the State’s “right e.g. to bail.” See Platt constitutional opinion with a discus contrary, begin our we State, (Ind.Ct.App. long to be the stand believe sion of what we denied; 1996), trans. Mott recognized Indiana. As ing “right to bail” *3 1125, 1126(Ind.Ct.App.1986). N.E.2d stated, right to freedom “the this court has to the pending trial is interrelated by bail right providing In a constitutional is that one accused Anglo-Saxon doctrine bail, a Constitution affords to the Indiana proven guilt until his is presumed innocent by right provided than that the Unit greater v. Hobbs Lind beyond a reasonable dоubt.” federal counter ed States Constitution. The etc., 74, 79, Sheriff, 240 162 N.E.2d sey, Ind. 1, § not a part to Article 17 does contain State, 85, (1959); 452 N.E.2d v. 88 Sherelis “right provision.2 Eighth to bail” 411, (Ind.Ct.App.1983). pre Due to the 413 only guarantees “[e]xces that Amendment innocence, object of bail sumption “[t]he of required, nor excessive sive bail shall not be punishment in very definitely not to effect is punish imposed, nor cruel and unusual fines Hobbs, 240 Ind. at conviction.” advance of Const, inflicted.” U.S. amend. VIII. ments Instead, 78, purpose the at 88. 162 N.E.2d Supreme that Court has held because allow an accused the pre-triаl of bail is to Eighth provide does not a the Amendment prepare his defense opportunity properly bail,” only as a “right to it can be construed presence at serving also to insure while in prohibition against excessive bail those Sherelis, 452 at 413. trial. N.E.2d proper. in which it is Cаrlson v. Lan cases don, 524, 545-46, 525, 342 72 S.Ct. 536- U.S. a ma constitutions of to the Similar (1952). 1, 37, § 547 Article 16 of states, 96 L.Ed. Constitution jority of the Indiana bailable, the Indiana Constitution contains similar qualified with the makes all offenses .a capital prohibition against Petition excessive bail.3 exception of crimes. Sеe of (Okla.Crim. 103, 105 Humphrey, 601 P.2d not In the instant case we are confronted Specifically, the Indiana Consti App.1979). of the amount of with the excessiveness tution, 1, provides § 17 as follows: Article bail, the trial court ordered that treason, Offenses, or other than murder Thus, without bail. neither the be held shall, by sufficient sureties. be bailable 1, § nor Article 16 of the Eighth Amendment bailable, or shall not be Murder treason implicated. More- Indiana Constitution are evident, proof presump- or the when the is over, we are not confronted with the denial strong. tion 1, § per bail se under Article the Humphrey court found when inter- As the Constitution, originally Indiana as bail was essentially language preting the same found $20,000.00. Instead, by set the trial court at Constitution, we find the in the Oklahoma we are faced with the revocation of bail. unambiguoüs— language of the section to be prоvided legislature Our has that a defen- Humphrey, 601 at its mandate clear. P.2d conduct, may, upon his forfeit his dant qualified excep- 105. from the listed Aside set. Indiana tions, right to bail once bail has been all offenses “shall the statement provides § for the alteration Code 35-33-8-5 provides, equivocation, be bailable” upon showing good pending trial. or revocation of bail a “right” the to have bail set Oedekoven, 381, part: cause.4 That section states in relevant 839 P.2d See Simms by proportioned the nature of the protections provided Con ties shall bе 2. The Indiana pro may be more extensive than those stitution offense. by counterparts. vided Taylor its federal constitutional 1052, (Ind.Ct. challenge does not the consti- 4.We note that App.1994). tutionality provi- the Code’s revocation bail appeal, Accordingly, in we do not sion. 3. The text of that section reads: 35-33-8-5(d) § consider whether Indiana Code required. be Excessive Excessive bail shall not right guaranteed to bail conflicts with imposed. Cruel and unusual fines shall not be 1, § Article 17 of the Indiana Constitution. punishments penal- shall not be inflicted. All (a) cause, 35-33-8-4(b) showing gоod ception Upon ap- a nor Indiana Code plies in this case. may granted an state or the defendant by applica- alteration or revocation agree We with the proceed- before which tion to the court July amount of set was In ing pending. reviewing a motion for excessive where amount bail, revocation of alteration or credible represented figure higher than that reason hearsay is admissible evidence to establish ably calculated to assure the defendant’s good cause. Sherelis, presеnce trial. at 452 N.E.2d at for release on that while admitted to bail the defendant: clear and (d) (1) The court jurors concerning nal ed or his a proceeding victim, [*] *4 convincing proof by agent threatened or may personal prospective [*] revoke bail or an or the any [*] recognizance рending other witnesses, sfc intimidat- the state matter; crimi- order [*] or ingly, person another dant clear and “to assure Indiana Code also setting consider poses both However, or the person convincing insuring a the the amount community risk to the amount of or the 35-33-8-4(b) physical safety a defendant’s evidence that the defen community.” reasonably if the bail, physical safety the court court provide presence of another amended finds Accord that, by at community safety may trial (2) and be consid agent attempted or or to conceаl setting ered in bail for in defendants Indiana. pend- destroy relating to the evidence ing proceeding; criminal Nevertheless, observed, already we are with confronted the revocation of bail and not (3) any condition of his current violated grant original the or denial of bail. There- order; release fore, community safety the consideration for (4) appear failed to before the court as determining ap- the amount of does not any stage ordered at critical the ply, parameters are by as we constrained thе or proceedings; by drafting pro- set our when the (5) felony a or a A committed Class concerning bail visions revocation contained that insta- misdemeanor demonstrates 35-33-8-5(d).5 § in Indiana Code bility a disdain and for the court’s Furthermore, persuaded we are not authority bring him to to trial. by attempt the to couch the trial State’s added). (emphasis § 35-33-8-5 Ind.Code in this in court’s action case as an “increase” Thus, bail, to obtain a revocation of Although than a bail rather revocation. to show admit- was that while originally prosecutor moved for an increase bail, types Ray engaged ted to in one of the $20,000 bond, original in trial court’s of misconduct enumerated above. he bail pending order that be held without Here, of bail the court its revocation clearly constituted a revocation bail. may 35-33-8-5(b), § on what be referred to as the new Indiana Code which discuss safety” exception “community by to a different es the relevant evidence to 35-33-8-4(b). section, bail, increasing app § code Indiana Code the court when does not However, ly.6 that ex- we conclude neither that presents 5. We one state have located Northern District of When the additional evidence recognized high nonappearance, in Indiana decision which the court relevant to a risk of 4(b) authority the inherent to revoke bail based based on factors set forth in section finding a that the defendant's conduct while re- chapter, may the court increase bail. public. poses danger a leased on to the bond Although a trial we do not address whether Markowski, F.Supp. United States community safety increasing when consider However, (N.D.Ind.1984). neither bail, that case is telling we find the absence of amount controlling persuasive upon nor our decision community safely a in this reference section. here, applied in federal as the court Markowski language limiting Due to the the evidence rele- law which is to our statе’s constitu- dissimilar increase that evidence vant to an statutory provisions. tional and high nonappearance, concerning risk of commu- nily safety proper would not to be a consid- seem provides "the That section as follows: eration. The mere reference to factors set proper of circumstances had a con 3.Under set that
Evidence
where the evidence is clear and
stalking
was in
and
the same victim
viction for
law,
convincing, the trial court has the in
sufficient,
support
as a matter of
of a
power
herent
to revoke the bond
of bail under Indiana Code
court’s revocation
v. Markow
on the
defendant. United States
Although
the decision
35-33-8-5.
(N.D.Ind.1984).
ski,
F.Supp. 1276
Code
35-38-
amount of bail under Indiana
4(b)
had been convicted
Evidence
the sound discretion of the
is within
8—
year
court, Mott,
stalking
the same victim a
ear
490 N.E.2d at
and
instability
some evidence of
community
proper
lier is
safety
while
is a
consider
authority
amount,
disdain for the
of the court.
setting
ation in
the revocation
However,
more,
the evidence
separate
code sec
governed
of bail is
supрort
a cause for
is insufficient
no evidence and
tion. The state introduced
Haynes
revoking Ray’s
See also
revoking
bail.
any grounds
establish
for
failed to
(Ind.Ct.App.
STATON, sepa- in result with concurs opinion. rate STATON, Judge, concurring in result. following for the reasons:
I concur result TEMPLETON, Merrianne M. 1. clear intent of the has Appellant-Plaintiff, punctilio been between obscured syn- two statutes: the before and after HAMMOND, Indiana; City CITY OF 35-33-8-5 and IC 35-33- [IC drome. Department; City Hammond Street 8^4(b) The distinction relied ]. Sanitary District; City Hammond “setting bail” versus revocation of bail Hammond, Engineering Depart Indiana “while admitted to bail.” The statutes ment; City Hammond, Indiana Public together. must be read Department, Appellees-Defen Works Majority statutory 2. embraces the dants. concept helpless that the trial court is to reconsider the amount of bail unless No. 45A04-9608-CV-349. expressed in one of the conditions IC Appeals Court of of Indiana. 33—S—5(d)(l—5)has been committed 35— disagree. “while to bail.” I admitted May previously had been convicted of person stalking the same less than a
year ago. legisla- It is clear protect physical
ture intended safety potential by setting victims appropriate amount of bail. It is
equally that the trial court is not clear limited to evidence of acts com- while admitted to bail. The mitted together. must statutes be read 4(b)” provision. forth in section would be insufficient to within this community safety bring the consideration