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08/17/87 ROBERT EARL KEEBY v. STATE INDIANA

Filed: August 17, 1987.

ROBERT EARL KEEBY, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM LAKE SUPERIOR COURT The Honorable James L. Clement, Judge Cause No. 4CR-29-285-123.

Givan, J., Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.

Author: Givan

GIVAN, J.

A jury trial resulted in a conviction of Robbery, a Class B felony, for which appellant received twenty (20) years, Kidnapping, a Class A felony, for which appellant received fifty (50) years, which was enhanced by thirty (30) years by reason of the finding of his being an habitual offender, and Criminal Confinement, a Class B felony, for which he received a term of twenty (20) years, all terms to be served concurrently.

The facts are: At approximately 2:00 p.m., on February 22, 1985, three men and a woman entered the Turtle Creek Pharmacy on Broadway in Merrillville, Indiana. The woman and at least two of the men were armed with pistols. The persons in the pharmacy were made to lie on the floor and some were bound with scotch tape, including the cashier, Doris Craig. Money was taken from the register drawer and from a cash drawer. Drugs were demanded of pharmacist Caspar Wiseman, who managed to set off a silent alarm.

While the robbery was in progress, Merrillville Police Officers arrived at the scene. When the robbers realized police officers were on the premises, they tried to escape through a back door, but found it to be secured. One of the robbers, later identified as appellant, grabbed Dorothy Halaschak by the shirt, jerked her to her feet and using her as a shield went to the front of the pharmacy holding a pistol to Halaschak's head. When Officer Eich saw the situation, he lowered his gun and allowed appellant to pass. Once outside the building, appellant, with his hostage, went to a maroon Buick Riviera where he encountered a second Police Officer, John Shelhart. Appellant kept repeating "I'll kill her, I'll kill her." Officer Shelhart, like Officer Eich, realized the endangered situation of Halaschak and allowed appellant to depart in the vehicle. The other three robbers surrendered to Officer Eich without further violence.

Police Officer Nolan pursued appellant as he left with his hostage in the Buick Riviera. A high-speed chase ensued along 61st Street until the vehicles entered I-65. Shortly thereafter, appellant found himself boxed behind two semi-trailers with Officer Nolan in close pursuit. Appellant then made a sudden right turn off the Interstate onto Ridge Road. Almost immediately thereafter appellant's Buick struck an Oldsmobile, whereupon appellant stopped his car and pushed his hostage out the passenger side. He immediately grabbed her and again used her as a shield as he unsuccessfully attempted to commandeer two vehicles. Upon finding each of the vehicles locked, he attempted to pull Halaschak up a snowbank; however, at that time she began dragging her feet and appellant dropped her. Pursuing police officers then wounded appellant with gunshots.

Appellant first claims he was denied his constitutional rights in that he was prosecuted by information rather than by grand jury indictment. Appellant cites the Fifth Amendment of the United States Constitution for his authority. It is well established that the constitutional requirement for use of a grand jury in felony cases applies only to prosecutions by the Federal government and does not apply to State prosecutions. Hurtado v. California (1884), 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed.2d 232. In Indiana, the prosecution for any crime may be initiated either by information or indictment. Hestand v. State (1986), Ind., 491 N.E.2d 976.

There was no error in prosecuting appellant on an information.

Appellant claims the charges in the information were false. Among other things, he argues the information was false in that it charged he "inflicted serious bodily injury" on Halaschak. However, as the State correctly points out, the trial Judge ruled that the State had not made a case of serious bodily injury and reduced the charge against appellant in this regard from robbery, a Class A felony, to robbery, a Class B felony, and sentenced appellant accordingly. As far as the other allegations in the information are concerned, it was the province of the jury to make the determination of the truth or falsity of the allegations based upon the evidence submitted by the State. This they did. This Court will not reweigh the evidence nor Judge the credibility of the witnesses. Young v. State (1986), Ind., 493 N.E.2d 455.

Appellant contends there is no evidence of robbery. The evidence is clear that Doris Craig, the cashier in the pharmacy, was first lured from her post by one of the robbers, who asked her to find scotch tape. At that point, she was forced to the floor and her hands taped behind her. During that period, she heard the sound of the cash register being opened. There is no question but what one of the robbers removed cash from the cash register. Inasmuch as the four robbers were working in concert, each was criminally liable for all of the acts done by his confederates. Johnson v. State (1986), Ind., 490 N.E.2d 333.

Appellant claims there was no evidence of kidnapping. He bases this upon his statement that he did not demand a ransom or reward for the release of Halaschak. He therefore reasons that no kidnapping took place. He of course is in error in this regard. Ind. Code § 35-42-3-2(b)(4), among other things, defines kidnapping as taking a person "with intent to use the person removed as a shield or hostage." It is abundantly clear from the evidence in this case that this is precisely what appellant did.

Appellant claims there is no evidence of confinement in this case. Both Shirley Murphy and Craig were forced to lie on the floor and were bound by the robbers. There is no question that this activity constituted confinement. Ind. Code § 35-42-3-2(b)(4).

Appellant next claims he was denied his constitutional rights in that no preliminary hearing was held in his case. To support this contention, he cites Fed.R.Crim.P. 5.1(A). Here again appellant confuses the Federal practice with State practice. The hearing required in Indiana is the omnibus ...


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