*1 250 Appellant newly-dis-
waken. The
thus contends that
justified
agree.
covered evidence
trial.
a new
cannot
We
“In
newly
order
warrant a
trial
new
evi
discovered
(even
such)
if
dence
we should consider this
must
be
impeaching evidence;
more than mere
it must
non
be
cumulative;
have
competent
it must be credible
must
and it
probability
producing
a
259
result
new
different
at a
trial. Emerson v.
N.E.2d
867;
Wilhoite
Cansler v.
N.E.2d 23.”
State, (1974)
Jones v.
nor can probably produce it be said it would different result at new trial. The trial court did not err denying that motion. judgment justices of the trial court is affirmed. All
concur.
Reported at
Note. — L.
Herbert Works Indiana. April 28, 1977.] 775S167. Filed
[No. *2 Joseph Bradley, Bend, D. appellant. South *3 Sendak, Attorney L. General, Theodore Avery, John P. Deputy Attorney General, appellee. for (Appellant) charged J. Defendant with
Prentice, felony (robbery) deadly commission of a while armed with a weapon, 35-12-1-1, robbery, Ind. Code 35-13-4-6, Ind. Code § § banditry, and automobile Ind. Code 35-12-2-1. He was found § guilty upon all three by counts after a trial jury and was imprisonment for sentenced a term of not less two than years upon nor more than banditry charge five the automobile twenty years charge, and a term of the felony armed concurrently. said sentences run appeal presents His the following issues:
(1) the Whether evidence was sufficient, as a matter law, sustain the verdicts.
(2) trial denying Whether the court in erred defend- pro motion, prior ant’s immediately se filed to the commence- trial, seeking ment of the a continuance for additional time private in which retain counsel. denying the defend- in
(3) court erred trial Whether cross-examina- permitted to conduct request ant’s he be rather than personally, witnesses tion of two of State’s by his counsel. obtained evidence had been
(4) physical certain Whether rights against searches and unreasonable in of the violation seizures. admitting evidence in certain the court erred Whether objection irrelevance.
over defendant’s admitting certain self- in court erred Whether objec- defendant, incriminating over his of the statements Fifth they in of his obtained violation tion that had been rights. Amendment tendered giving the in State’s court erred Whether the person,” advising taking “from the
instruction No. statute, require that robbery did not proscribed as physical person another article be taken from the actual “* * * taking personal well, from the proscribed, but such personal protection of the victim.” presence or I
ISSUE Viewing inferences and the evidence favorable to therefrom, it disclosed that reasonably drawn liquor store tavern parked in front an automobile operated by Danch, time at the premises Vera owned and store, alleged pur- He place affidavit. entered inquired closing wine, as to time a bottle chased later one-half hour same left. returned about He store, gun displayed vehicle, reentered the to Vera robbery. your “Lady money is a Give me out said *4 gave register.” money, he then cash Vera him give money purse. her him the from her She instructed to her, get open, whereupon it it he unable to took from currency. opened her removed the next He instructed money give register, him the from to a second cash which Thereupon, she did. lavatory, he ordered her into a left, he barricaded the door and told would he her that he episode, shoot her if she During came out before left. such * * * quote testimony, Vera’s I “I was scared. was stunned ** and scared to death leaving lavatory, After Vera in the left the away store automobile, which he and drove wrecked attempting brief pursuing time later while to elude responded by who to an electronic alarm Vera. activated question foregoing There can no but related be activity encompassed circumstances and all the elements charged. Apparently, of the crime the defendant does not comprehend sufficiency our role in a review, as entire argument weight upon this is only issue addressed credibility the evidence witnesses, and the of the matters which this Court State, will not review. Rosell v. 750; Ind. 352 N.E.2d Lottie
Ind.
311 N.E.2d
Broivn 619,
When the of the is evidence raised as an issue upon appeal, only this Court will consider that evidence
probative value most favorable to- gether logical with all and reasonable inferences may which be drawn therefrom. evidence If such permit and inferences would a reasonable trier of fact find the charged existence of each element of the be crime yond doubt, a reasonable will verdict not be disturbed. State, (1976) Baum v. and cases there cited. II
ISSUE day prior On trial, date set judge for the trial received, mail, request pro defendant, from the se, employ continuance to private enable him to counsel. The trial court treated this as a hearing motion and held a morning thereon on of the trial date and denied the same.
255 funds hearing, that he now the defendant stated had At the specific lawyer that pay a but he had no to with which his lawyer expressed dissatisfaction in mind. He no with represented counsel, him for four and appointed who had Rather, prepared for trial. months and was one-half merely expressed his a to have counsel of desire defendant choice. own appointed attorney by the court “The services an may pauper defendant if not forced but be a appointed represented by the to defendant refuses be employ own counsel, he must find some method his proceed propria persona.” Irvin; in counsel State v. 70, 610,
Mogle; McAllister, citing 169, Youngblood, (1947) 225 Ind. Schuble v. N.E.2d 478. arraignment hearing at first held defendant
August 29, requested appointment but of counsel request represented that would then withdrew his and Arraignment Sep- employ was his own counsel. continued person appeared date, On that the defendant in tember 6th. year certified law and with a third student advised and lawyer appear, specific private counsel would court arraignment being Again, time named. continued —this September private appeared 13th. No counsel had 13th, date, in present and on with the appointed Anthony person, pauper the court Luber coun- arraignment September and 19th. No sel continued ob- jection was made. 19th, appeared in September person the defendant
On arraignment on plea Mr. with Luber entered a not 7th, guilty. hearing October On case was set for omnibus pretrial conference on October 29th a trial and for on January 15, 1975. On October 29th a motion for reduc- bond filed, hearing tion was and was October scheduled on 30th. foregoing record, denying
Upon there error was no argues motion for continuance. The defendant that he right under and Federal Constitutions financially attorney if
to have an
of his choice
he was
employ
one, citing
Minton,
able
State v.
Alabama,
Powell
287 U.S.
53 S.Ct.
statutory (Ind. ones 35-1-26-1) Code within sound §
discretion of the 53.4; trial court. Ind. R. P. Car Tr. State, (1970) un v. 870; 332, 259 N.E.2d Ind. State, Calvert v. (1968) 119, 251 Ind. 239 N.E.2d 697; State, Ward v. 374, 148. N.E.2d The exercise may of such by discretion be a disturbed reviewing only court error, for clear which has not been here shown.
ISSUE III
During the course of the
chief,
State’s case in
the de
requested
he, personally,
fendant
that
permitted
be
to cross
examine two of the State’s
request
witnesses. The
was denied.
State,
In Adams N.E.2d
requested permission
defendant
argument
to make the final
jury.
quoted
to the
This Court
from United
Catino,
States v.
(2nd
1968)
Cir.
his own is prior if evoked to the start * * * begun of the trial Once the trial has with the defend- represented by ant counsel, right however, his thereafter discharge lawyer represent to his and to sharply himself is prejudice showing to that be a There must curtailed. overbalances legitimate interests defendant progress, with already disruption proceedings potential assess- judge’s given trial weight being to considerable added). (Emphasis balance.” ment proceed to criminal defendant allow to a The decision sound begun is also within trial has after without counsel ques- involves a This court. of the trial discretion bears burden fact the defendant tion of legiti prejudice his establishing to existence of 284, 315 (1974) 262 Ind. Hester v. interests. mate 287 N.E.2d 351; Turner 783. Here (1972) 259 Ind. Hitch v. Specifically, he carry burden. failed giving ex showing reasonable claim rise made no any the witness elicit evidence from pectancy that could attorney could not. which his judge’s justification trial for the denial
There is another sought request. Both witnesses whom he defendant’s by already examine had cross examined cross been attorney. duty protect wit It is the court’s interrogation against harass nesses needless doing, require In has ment. so court rarely attorney, be cross examined but one *7 witness procedure accord tra is such varied. This is in with ancient Jury Trials, Encyclopedic dition. Busch in Law Tactics Three, p. Edition, 502. Volume
ISSUE IV physical that The defendant contends certain evidence person from his the he removed and from automobile which during operated improperly the commission of the crimes was objection. evidence his admitted into over This claim is exclusionary Mapp Ohio, (1961) the rule of v. based 643, 1684, 1081; US 81 S.Ct. State, 6 L.Ed.2d Crowe v. 562, 759; (1969) State, 251 Ind. 243 N.E.2d Brooks v. (1967) 249 Ind. N.E.2d 816. mentioned, robbery an the victim activated previously
As system robbery progress. was in electronic alarm while police Bend, As one It Indiana Police. alerted the South unlighted auto- investigate, an officer arrived to he noticed The moving away slowly from the store. mobile in front of patrol police Another officer officer followed his car. attempted patrol path another block car de- fendant, escaped. up but he vehicle drove his onto curb finally pursuing police captured officers high speed a automobile col- after chase ended in which liding apprehended physically with a tree. The defendant was ground passenger door open he on next as crouched containing coins, a paper vehicle. A sack wrecked revolver, front and other items of evidence was found on the automobile, currency seat of the the de- was found on person. fendant’s by
It is under conceded the defendant falls that search exception requirement being an incidental warrant arrest, probable to his he a police but maintains that the lacked cause to evidence arrest and seizure that warrantless incidental to an Amendment invalid arrest the Fourth violates I, to the Constitution Article United States and Section 4 of the Constitution of the State of Indiana.
Although police may a officer not for a arrest misdemeanor warrant, without a unless the misdemeanor committed view, Hart v. within his 492, may felony
145 N.E. arrest for a without probable warrant, if he has reasonable cause felony being, been, is has believe committed subject Wagner v. of the arrest. Carter 236; Stearsman; Peak; State, (1957) Snow 237 Ind.
234,
The defendant that did not have sufficient been felony committed at cause believe there had
259 began time the first officer mentioned follow away as it victimized automobile was driven from the their store or when he and the second officer made question attempt stop is, however, it. first The whether arresting cause, time officer had sufficient at the arrest, felony. had, defendant believe that the committed a person placed An a re arrest occurs when is under actual straint, 85-1-19-1, which, case, when Ind. in this Code was § police apprehended defendant beside as crouched time, vehicle. At wrecked that knew a that robbery been probable had committed and had to believe cause perpetrator. that defendant was the arrest Since lawful, was the evidence obtained as an incidence thereof was properly admitted.
ISSUE V evidence seized a result search of the of the de- person fendant’s and of the motor vehicle consisted of a revolver, ammunition, bag coins, hat, stocking, a currency. The defendant maintains the admission of these items they was positively erroneous because had not been identified the victim and were not relevant. logical tendency
Relevance is the prove of evidence to material State, Walker 8, fact. 265 349 N.E.2d v.
161. Evidence which legitimately tends connect the defendant charged with the crime is admissible over a claim irrelevance. Austin v. 529, 130,
262 Ind. denied, cert. N.E.2d 1012, U.S. 2417, 680;
S.Ct. 44 L.Ed.2d State, (1970) Graham v. But, 255 N.E.2d 652. connection not need absolute be unequivocal. “Any or fact or circumstance that tends render a claimed fact more probable or less is relevant to show whether fact claimed exists or not.” Vorhis v. 233 Ind. 234; Also see Pirtle State, (1975) Austin
supra.
The officer who arrested the testified question evidence been from the removed defendant’s person under recovered from which his control area at provided the time of his This sufficient link arrest. *9 the the The the between defendant and evidence. victim of robbery had testified the robber wore a hat similar to found, display the one that the robber had raised his shirt to pistol a money stuck in his trousers and that he removed paper customarily type package a sack of the used bottles to .liquor. juror legitimately A reasonable could infer from testimony such that the items of evidence linked the defendant charged. to the crime nylon stocking, having
The cut out with holes and appearance only piece of a mask was the of evidence not directly circumstantially related to the crime of which Although the defendant was convicted. worn robber had mask, no was, nevertheless, admission of this evidence error, not capability because was indicative of a of conceal- ing identity, his legitimate a permitted factor which in- contemplated robbery. ference that he Further, had overwhelming view of other evidence of the defendant’s guilt, it is unreasonable to believe this bit evidence significant had impact upon jury.
ISSUE VI Immediately arrest, after the defendant placed was under arresting officer warned the defendant his constitutional rights by reading printed aloud list of “Miranda” so-called warnings, advising which included him of his remain to silent. To this the expressly replied defendant that he under- rights what stood his were nothing but that say. he had to point At this the defendant offered resistance, some where- upon, police present two officers ground threw him the to in order to person conduct a search his restrain and to him with handcuffs. As the defendant forcibly was thus restrained, he incriminating uttered the statement, “The gun is in the car and all go I want jail.” is to to arresting testimony concerning officer’s this statement was admitted at trial over the objection, into evidence defendant’s custody, police arrest, and while in A after his few hours requested permitted talk that he be defendant merely seeking medical that he was someone. He contends al- attention wrists for numbness in hands and which legedly tight A produced handcuífs. detective was summoned, however, from was defendant was removed interrogation again his cell to an informed room where he was rights sign of his constitutional and refused a written Nevertheless, prior any interrogation, waiver thereof. incriminating spontaneously information, say- he volunteered ing it, inquiring wanted to that he not do as to how remarking victim that she had seemed nervous. Following making spontaneous remarks, such proceeded detective questions, ask answered them. Evidence the volunteered statement was *10 objection, admitted over but evidence obtained the from interrogation was excluded. eight
Some arrest, seven hours after the defendant’s again cell, interrogation removed from his taken to an again room rights. and advised of his constitutional On this occasion, the defendant rights, indicated that he understood his signed a thereof, interrogation written waiver submitted questions. and answered objected
The defendant admissibility to the of each of the upon grounds aforementioned statements they the rights been in against “obtained violation his of self-incrimina right tion and his counsel.” lumped He has three together occasions and asserts that the statements were made (1970) inadmissible under Mims v. 37, 262 255 Ind. 638,
N.E.2d Brown (1971) v. 558, N.E.2d 751 and Millican App. 363, Ind. briefing 359. We consider the this issue to be
inadequate requirements under the Ap. of R. (A) P. 8.3 requires: which “* * * argument shall contain the contentions of appellant respect with presented, the issues support reasons in along of the contentions with citations relied statutes, parts the record of authorities,
to the contentions showing the issues and of how a clear upon, case of particular facts support relate to in thereof under review.” necessary extent treat the issue to
Nevertheless, shall we been has that no substantial to assure or violated. overlooked not been contention he had makes no
The defendant Arizona, warnings required given under Miranda rather, L.Ed.2d 86 S.Ct. 384 U.S. questioned not have position that he should been his is rights that the following his first to waive his refusal know- carry proving that he had its burden of had failed rights. ingly intelligently his waived regard statements on the to the made occasion With jail, the state- first made at the we note arrest and the ones interrogation product but not ments were [11] were volunteered. Interrogation did follow such they ad- jail, were not statements made at but Although mitted, not with them. and we need concerned be that he to remain the defendant indicated one breath desired inculpatory in- silent, the next breath he volunteered having interrogation, presump- formation. There been no Miranda not tion involuntariness that arose under did Rather, be admissibility the statements is arise. totality by determining, circum- from the controlled voluntarily. stances, they not whether or were made Ortiz State, (1976) 1188. *11 V. State,
In v. Johnson determining volun- this Court articulated the standard for tariness as follows: * *
«* circumstances, whether under all the attendant voluntary, freely was free self-deter- the confession mined, will, product a rational intellect free any compulsion sort, without or inducement or whether will at he confessed.” the accused’s was overborne time prove the Although required to voluntariness doubt, we beyond reasonable the defendant’s statements sufficiency other question upon appeal as we do review pro- substantial matters, whether there was i.e. to determine finding. do support the trial court’s We bative evidence to supra. the evidence. Ortiz v. weigh State, not indicating presented no circumstances have been with We logically any police which or coercive action unusual the defendant or overborne would have misled regard statements considera will to the under with previously referred to volunteered. tion and as produced from State’s burden was fulfilled when evidence was beyond which the trial court a reasonable could have found unnecesary excessive, doubt that conduct was not or unreasonable.
Turning
police interrogated
to the
occasion when the
interrogation
time,
the second
such re-initiation of
following
may
the defendant’s election
remain
silent
have
improper, notwithstanding
been
the reiteration to the defend-
rights.
ant
his constitutional
The defendant
not
has
related
surrounding
interrogation
to us the circumstances
but
v.
seeks, upon
authority
v.
supra,
of Mims
Brown
supra
and Millican v.
State, supra,
rule of
to have a
per
inadmissibility
se
invoked.
doWe
not view these cases
going
far,
contrary
Michigan
and the
was held in
Mosley, (1975)
423 U.S.
96 S.Ct.
Assuming the ruling incorrectness of the trial court’s admitting evidence, the last however, mentioned we could error,
not reverse such because the evidence that came into the record thereunder was not decisive guilt merely cumulative. Koonce but was *12 5, Chatman v. 673.
ÍSSUE VII instruction No. The State’s tendered 8 was as follows: an robbery elements of the crime is that “One This person’ article of value be taken ‘from the does of another. not mean that article must be taken from pur- actual, physical person another, For the however. pose offense, person’ may ‘from the an include pro- personal presence personal article taken from the tection of the victim.” objected above instruction prima attempted jury to dictate to
basis fact, facie evidence an which would ultimate establish I, in violation of Article Section Constitution see in We no error such instruction Indiana. taking regard being statutory it as but definitive of the words person”. It an accurate “from formulation of the law expressed as Smith jury province no see invasion of the of the
N.E.2d 765. We determine the facts from the evidence. error, judgment trial
. find and the of the We no reversible is affirmed. court De-
Givan, Hunter, JJ., concur; and Arterburn and C.J. Bruler, opinion. J., dissents with Opinion
Dissenting Szymczak appellant few J. Officer arrested DeBruler, appellant’s placed car into tree. moments after crashed He Szymczak appellant’s one wrists. a handcuff on Officer immediately right arrest, told him he was under he had a right attorney, silent, he if could remain an one, appointed Appellant one not- afford would be for him. nothing response Szymczak to this advisement. Officer said handcuffing appellant over to Officer Miller to finish turned him, appellant Miller took hold of transporting. As for rights,- began an advisement of crying. Miller then read him supplied word, him which had been from card word Academy. reads: That card you must understand you questions, any “Before we ask rights follows: your rights and also understand say Anything you can remain have the silent. You *13 right questions against you to talk to You have the in Court. be used to you any and lawyer for advice we ask before you you you If during questioning, you if wish. have him with lawyer present, questions without a to decide answer answering You any right time. stop at to will still have you answering any right until time stop to at also have lawyer.” talk to a advisement, appellant, still while having this After heard having other response, his crying, resisted verbal and without his ground flipped and onto cuffed, onto hand and was cuffing completed. so situated While stomach was where and ground, patting him Miller down on the Officer started crying searching while person; while still and his and then out, being appellant yelled upon ground, the so searched jail.” just gun go “The is in the front seat and I want to to suppressed on motion This statement should have been beyond reasonable appellant as the failed to doubt State show voluntarily 256 it that was made. Nacoff v. .94, State, (1973) 260 Ind. Burton N.E.2d made The circumstances under N.E.2d 790. which was voluntary appellant to that choice indicate made no free and by appellant speak. The received moments advisement before you commences “Before ask the statement with words we any questions. upon appellant . .” and calls to make . later an give police to immediate decision as whether he wants to phrases information. These in this advisement inform police person they step to are whom directed that first in a getting process taking place. aimed at information is now immediately by re was followed further advisement forcible appellant. search of force physical straint and a While legitimate custody taking was reasonable means of as a appellant upon the appellant, its influence was nevertheless shouted, was appellant Miller Officer as he cried out. And as necessary something. only searching it is person his While for burden that the failed its to conclude State this Court voluntarily error the statement to find to show was made here, go that the reasonably could we so far here as to conclude only appellant inference the evidence was reasonable from give what in order made this statement thought they after, himself were order to extricate at the from the conditions there scene. transported scene, episode appellant
After this at by again jail Miller. En Miller Officer route Officer him, appellant read a Miranda advisement this time responded nothing say. that he It exercise is this right heavy him of the to remain that casts the silent beyond burden doubt show reasonable giving statements, before two later station house appellant voluntarily intelligently relinquished to remain silent. Brown v. 751; Magley State, (1976)
N.E.2d *14 appellant 811. After police several hours at the sum station interrogation room, moned an officer. He then taken was to an sign rights, read an advisement but refused to a waiver. gave refusing He then the first station house statement. In sign indicating willingness to the waiver speak, and in to taking appellant contradictory positions. was such Under circumstances the inquiry should have made further appellant’s relinquish right determine whether decision to being ignorance to remain silent was made out confusion. State, supra; Brown v Jones, State v. .
Ohio 2d St. inquiry, 409. Without such an no reasonably conclusion could appellant be reached intelligently voluntarily relinquished right remain refusing silent. The court suppress trial erred in this first station house statement. And as for the second station house statement, erroneously objection too was admitted over since appellant’s sign decision a written waiver of right t<? product of and was counsel remain silent interrogation in which precedent unlawful tainted incriminating seriously statements. Westover appellant made 86 S.Ct. L.Ed.2d U.S., U.S. v. Corley N.E.2d 192.
Ashby; order a trial. I reverse conviction and new vote to Reported 144. at 362 N.E.2d Note. — Singh J. Ex Rel. Pritam Shaunki Indiana Judge Court. Endsley, the Marion Circuit
Patrick May 4, 1977.] Filed 177S1. [No. Elberger, McKinney Bose, Evans, Indianap- E.
Ronald & olis, petitioner. for Kelly, respondent. Indianapolis, F.
Ediuard J. This matter is before us the return Prentice, *15 Respondent to the Writ Mandate and Prohibition issued January herein on and Motion Correction and 444itiop Respondent filed January on thereto 1977- llf