Donyea Fowler 1-3 Darden
(Judge Roland Chamblee, St. Joseph Superior Court reversed and remanded twice)
- Amendment of information was untimely.
- There was sufficient evidence of resist by fleeing.
I. AMENDMENT OF INFORMATION UNTIMELY
FACTS:
April 4, 2005 Date of Offense
May 13, 2005 RLE (Fd) Charge Filed
May 16, 2005 Initial Hearing - No omnibus date is set (latest date is July 30, 2005)
- ptc set November 16, 2005
- trial date set December 8, 2005
(June 30, 2005 Deadline for substantive amendments to information)
November 16, 2006 defendant fta’s
(Defendant re-arrested)
May 9, 2006 State files motion to amend adding felony auto theft and battery charges
May 23, 2006 Trial court grants motion to amend over defendant’s objection
Trial in 2006
May 8, 2007 IC 35-34-1-5 is amended giving state more discretion to amend
DISCUSSION:
Amendment over a year later adding charges of auto theft and battery to felony resist information violates IC 35-34-1-5. Fajardo argument wins on pre- statutory amendment case. Amendment to statute was effective May 8, 2007. Original information charged May 13, 2005. Amendment to information was granted May 23, 2006. Trial date was in 2006.
RECALL Fajardo v. State 859 N.E.2d 1201 (Ind. 2007)
Adding Ct II Child Molest (fA) to Ct I Child Molest (fC) after expiration of omnibus date was substantive change that was time-barred under IC 35-34-1-5.
Original charge was May 13, 2005, with an initial hearing on May 16, 2005. No omnibus date was ever set. It should have been 45-75 days after the initial hearing. The fact that the defendant failed to appear November 16, 2005 for a pre-trial before the trial date of December 8, 2005 had no impact. The amended information was filed May 9, 2006 and was granted after a hearing on May 23, 2006, after the defendant’s re-arrest.
Because adding charges is a substantive change it should have been done 30 days prior to the omnibus date. (The latest omnibus date should have been set no later than 75 days after May 16, 2005: or July 30, 2005. 30 days prior to July 30, 2005, would be June 30, 2005. So the amendment should have been made before June 30, 2005. Another way to calculate it is 45 days after the initial hearing.) Nevertheless, the trial court allowed amendment on May 23, 2006. The appellate court reversed and remanded on the felony auto theft and battery counts because the amendment adding those counts was untimely.
But NOTE: The May 8, 2007 statutory amendment now gives the State broad discretion to make substantive amendments to the charges (30 days prior to the omnibus date or “the commencement of trial” as long as it does not prejudice the substantial rights of the defendant).
Also NOTE: The State might have been able to file the new charges under a separate cause number, rather than adding new counts to an old information.
II. RESISTING LAW ENFORCEMENT – SUFFICIENT EVIDENCE
Appellate court reinstated the jury verdict of guilty to resist by fleeing by reversing the trial court’s TR 50 (A) determination of insufficient evidence.
FACTS:
On April 4, 2005, task force officers approached Fowler’s home armed with an arrest warrant and file containing his identifiers including a photo. Four officers entered while the remaining officers established a perimeter around the residence. The lead officer upon entering said to the defendant (Fowler) and his mother, “I’m with the U.S. marshals and we’re here serving a felony warrant.” When asked to identify himself the defendant gave a false name he was unable to spell. Also, he was unable to provide a social security number. The lead officer testified it was evident Fowler was the suspect right after he couldn’t spell the (false) name he provided.
The lead officer turned to deal with the upset mother and a second officer directed the defendant into the kitchen area to continue with the identification process. The defendant’s mother then instructed the defendant to go into the bedroom and disregard the officers. The defendant then fled into one of the adjoining bedrooms. Several officers pursued and ordered him to come back. However; there was no testimony that any officer expressly commanded him to stop. A third officer kicked open the bedroom door and observed the defendant trying to escape through the bedroom window. An officer outside the window, manning the perimeter, was in full uniform. This forth officer tried without success to grab the defendant. The defendant retreated back into the bedroom slamming the window on the perimeter officer’s arm. The defendant then escaped through the window of another bedroom. Officer (3) (who kicked in the (first) bedroom door) pursued on foot, but the defendant escaped by stealing an SUV.
DISCUSSION:
In a resist case officers need not use the magic words STOP POLICE, but may use visual indicators to convey the stop. In this case the officers were serving a fugitive warrant. They clearly conveyed police status and their specific purpose of serving a fugitive warrant by telling the suspect and his mother this information. This was not a random encounter with the police on the street. (Running from officer who hasn’t commanded you to stop is not resist). The officers’ commands to come back after the defendant fled into a bedroom were sufficient indicators of the order to stop. “Although the word ‘stop’ was not expressly stated, Fowler had been visibly and audibly ordered not to flee. To hold otherwise would make the ‘by visible or audible….means’ language of the statute meaningless.” IC Sec. 35-44-3-3. Keep in mind the defendant had been directed into the kitchen area to continue the identification process when he fled into the bedroom prompting the police to demand he come back. Also, an officer in full uniform grabbed him but was unable to maintain control. The defendant broke free, ran away on foot, and finally evaded capture by stealing an SUV.