Akins v. State

429 N.E.2d 232, 1981 Ind. LEXIS 955
CourtIndiana Supreme Court
DecidedDecember 22, 1981
Docket580S127
StatusPublished
Cited by76 cases

This text of 429 N.E.2d 232 (Akins v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akins v. State, 429 N.E.2d 232, 1981 Ind. LEXIS 955 (Ind. 1981).

Opinions

PRENTICE, Justice.

Defendant (Appellant) was convicted of murder, Ind.Code § 35-42-1 — 1 (Burns 1979) and was sentenced to a term of thirty (30) years imprisonment. This direct appeal seeks review upon the following issues:

(1)Whether the trial court erred in granting continuances, upon the State’s motions, for unavailability of a witness who had not been named upon the information.

(2) Whether the trial court erred in denying Defendant’s motion for discharge for delay in bringing him to trial.

(3) Whether the trial court erred in admitting autopsy photographs into evidence.

(4) Whether the trial court erred in admitting into evidence a published ballistics article and accompanying testimony of the State’s ballistics expert, over the defendant’s objection of hearsay.

(5) Whether the trial court erred in admitting evidence of certain statements attributed to the decedent, over Defendant’s objection of hearsay.

(6) Whether the trial court erred in admitting certain physical evidence taken from the defendant at the time of his arrest, over his objection that his warrantless arrest had been unlawful as unsupported by probable cause.

(7) Whether the trial court erred in admitting into evidence tape recordings and written statements and transcriptions over Defendant’s objection of hearsay.

(8) Whether Defendant was entitled to a new trial upon discovery that a State’s witness had been determined to be incompetent to stand trial upon an unrelated charge.

(9) Whether the trial court erred in refusing to give Defendant’s tendered instruction advising that it was the duty of the jury to reconcile all the evidence with the presumption of his innocence, if possible and to resolve doubts in his favor.

(10) Whether the guilty verdict was sustained by the evidence.

ISSUE I

Defendant contends that the trial court erred in granting two motions by the State for continuance, both of which were premised upon the unavailability of a material witness. It is his position, in this appeal, that the name of the witness, Mildred Southward, had not been endorsed upon the information and that Ind.Code § 35-3.1-1-[235]*2352(c), therefore proscribes the grant of a continuance for the State.

Defendant was arraigned on March 2, 1979. He expressly waived his right to a “speedy trial”, and the matter was set for trial for June 18, 1979. On June 8, the State filed a written motion for a continuance, because of the unavailability of Southward, and it was granted on June 15, 1979. The defendant objected to the grant of such continuance, not by reason of the statutory proscription but, rather, upon the contention that Southward was not a material witness and that the testimony to be anticipated from her was available from other witnesses. The issue which the defendant here seeks to present, therefore, is not available for review. Phelan v. State, (1980) Ind., 406 N.E.2d -237, 289; Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156.

Upon granting the State’s aforementioned motion for a continuance, the court set the trial for July 9, 1979, but on that date the judge, sua sponte, re-set the trial for July 23rd, because of the death of his father.

On July 13, 1979, the State again filed a motion for a continuance, because of the unavailability of Southward, who was in the hospital and was to undergo major surgery during the week of July 23rd. On this occasion, Defendant protested the grant of a further continuance upon the same grounds urged in this appeal, i.e., Ind.Code § 35-3.1-1 — 2(c), which is as follows:

“An Indictment, or information, shall have stated upon it the names of all the material witnesses. Other witnesses may afterwards be subpoenaed by the state, but unless the name of a witness be stated on the indictment or information at the time it is filed, no continuance shall be granted to the state on account of the absence of such witness.”

Assuming that it was error for the trial court to grant the continuance, in view of the statute, it does not necessarily follow that a reversal is required. Although a continuance under such circumstances is proscribed, the statute makes no provision for sanctions per se. The purpose of the statute is to compel compliance with witness disclosure requirements, and the statute is, itself, a provision for sanctions for failure to disclose. The action appropriate for an appellate court when, as here, the trial court has refused to impose the sanction must be determined in context.

The defendant was taken into custody on January 28, 1979 and charged on February 2nd. On July 19th, the State filed a supplement to its July 13th motion and therein alleged that Defendant had known of the name, address and anticipated testimony of the witness since March 2nd. Although he has not, by his brief, acknowledged the correctness of the self-serving allegation, neither has he disputed the State’s allegation of such information set forth in its answer brief. In any event, it cannot be disputed that the defendant was fully informed concerning the witness and the anticipated testimony from and after June 12th, when he filed his written objections to the State’s first motion for a continuance. The trial did not commence until October 1, 1979, hence Defendant had not less than three and one-half months notice and could not have been substantially harmed by the State’s omission of the witness’ name from the information.

ISSUE II

Defendant also assigns as error the denial of his motion for discharge, under Ind.Rules Cr.P. 4, by reason of the delay in bringing him to trial. He premises his entitlement to discharge upon both a detention in jail, without trial, for a period in excess of six (6) months from the filing of charges and upon a delay in excess of seventy (70) days in bringing him to trial following his filing of a motion for an early trial.

Criminal Rule 4(A) makes provision only for the release of the accused upon his own recognizance for a delay in excess of six (6) months in bringing him to trial. It does not provide for discharge.

Criminal Rule 4(B)(1) does provide for discharge for delay in excess of seventy [236]*236(70) days from the date of filing a motion for an early trial. However, there was no such delay here. It is Defendant’s claim that he made his early trial motion on June 8, 1979, but the record does not bear him out. The record of June 8th is as follows: “The defendant indicated he will file a motion effective this date withdrawing waiver of speedy trial; * * We presume this was an expression of an intention to withdraw the waiver, previously mentioned herein, voiced at the arraignment. However, we have no way of knowing which of the provisions of Criminal Rule 4 he had waived. Assuming that the initial waiver was of his right to file a motion for an early trial, its withdrawal, at the most, would only have reinstated his right to file such motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Douglas A. Guilmette v. State of Indiana
14 N.E.3d 38 (Indiana Supreme Court, 2014)
Kobashigawa v. Silva.
300 P.3d 579 (Hawaii Supreme Court, 2013)
Hill v. State
773 N.E.2d 336 (Indiana Court of Appeals, 2002)
DeLong v. State
670 N.E.2d 56 (Indiana Court of Appeals, 1996)
Burkes v. State
617 N.E.2d 972 (Indiana Court of Appeals, 1993)
Barger v. State
587 N.E.2d 1304 (Indiana Supreme Court, 1992)
Bitzer v. Pradziad
571 N.E.2d 593 (Indiana Court of Appeals, 1991)
Moore v. State
569 N.E.2d 695 (Indiana Court of Appeals, 1991)
Reed v. Dillon
566 N.E.2d 585 (Indiana Court of Appeals, 1991)
Holder v. State
572 N.E.2d 501 (Indiana Court of Appeals, 1990)
Phillips v. State
550 N.E.2d 1290 (Indiana Supreme Court, 1990)
Lowery v. State
547 N.E.2d 1046 (Indiana Supreme Court, 1989)
Games v. State
535 N.E.2d 530 (Indiana Supreme Court, 1989)
Wixom v. Gledhill Road MacHinery Co.
514 N.E.2d 306 (Indiana Court of Appeals, 1987)
Eddy v. State
496 N.E.2d 24 (Indiana Supreme Court, 1986)
Remsen v. State
495 N.E.2d 184 (Indiana Supreme Court, 1986)
Boyd v. State
494 N.E.2d 284 (Indiana Supreme Court, 1986)
Micinski v. State
487 N.E.2d 150 (Indiana Supreme Court, 1986)
Lewis v. State
484 N.E.2d 77 (Indiana Court of Appeals, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
429 N.E.2d 232, 1981 Ind. LEXIS 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akins-v-state-ind-1981.