Ashby v. State

• Citation: 486 N.E.2d 469
• Decision Date: 12 December 1985
• Docket Number: No. 385S112,385S112
• Parties: Aubrey ASHBY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 469

486 N.E.2d 469

Aubrey ASHBY, Appellant, v. STATE of Indiana, Appellee.

No. 385S112.

Supreme Court of Indiana.

Dec. 12, 1985.

Susan K. Carpenter, Public Defender, and C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., and Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury on eight separate counts: Counts I, II and III, Armed Robbery; Counts IV and V, Kidnapping; Count VI, Rape; Count VII, Attempted Murder; and Count VIII, Criminal Confinement. The court sentenced appellant as follows: Counts I and III, ten (10) years each; Count II, twenty (20) years to be served concurrently with the ten (10) year sentences imposed on Counts I and III; Count IV, fifty (50) years to be served consecutively with the above counts; Count V, fifty (50) years to be served concurrently with Count IV; Count VI, fifty (50) years to be served consecutively with the above counts; Count VII, fifty (50) years to be served consecutively with the above counts; and Count VIII, fifty (50) years to be served concurrently with Count VII.

The facts are: Appellant, armed with a pistol, entered a service station and demanded the attendant open the cash register. Appellant took nearly $600 and placed the money in his pocket. He then instructed the attendant to hand over his wallet and valuables. Witnesses observed these activities and called the police. When officers arrived, appellant took the attendant as hostage and used him as a shield to effect his escape.

A few minutes later appellant accosted a couple as they sat in their automobile. Appellant forced the man into the trunk. Appellant then drove the automobile to a rural area where he raped V.R., the female passenger. V.R. escaped after the rape and proceeded to a nearby farmhouse for assistance. Appellant then drove the automobile to a closed service station in Princeton, Indiana. There appellant ordered the man from the trunk and threatened to kill him. When appellant's attention was momentarily diverted, the man escaped. As the man ran into a nearby trailer park, appellant fired several shots. Appellant then fled the scene in the automobile. He was captured the next day.

Appellant argues the trial court erred when it denied his motion for a change of venue from the county. Appellant, a black man, was charged with crimes that included the rape of a white teenage girl. In a hearing on his motion, appellant presented evidence of two sources of community prejudice. The first was racial prejudice. To this end appellant presented evidence that a burning six foot cross and a skinned raccoon were placed in the yard of the jail where he was housed. He also presented evidence of conversations in the community in which the speakers demonstrated racial bias and bigotry. On this issue he presented the testimony of two local attorneys who indicated that, based on their combined thirty years of legal experience, they believed appellant would have a difficult time obtaining an impartial jury in the community.

Appellant's second issue of community bias centered around the pretrial publicity given the incidents. Appellant introduced the texts of stories which were presented in the local print and electronic media. The evidence indicated the public was exposed on more than one hundred occasions to appellant's name and a journalistic version of the incident over local television and radio stations. In addition various news reports were published in the local and Evansville papers. Appellant attempts to equate this coverage with that in Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.

The trial court denied appellant's motion for change of venue but reserved the right to sua sponte grant the motion following the voir dire of the jury. The ruling of the trial court on a motion of this nature is reviewed only for an abuse of discretion. Ind.R.Cr.P. 12. When an appellant asserts a denial of a fair trial due to adverse community prejudice, he bears the burden to establish adverse publicity and that the jurors were unable to set aside any preconceived notions of guilt and render a verdict based upon the evidence at trial. Yeagley v. State (1984), Ind., 467 N.E.2d 730. There is a presumption that the juror's voir dire is truthful. However, this presumption can be overcome by a showing of a general atmosphere of prejudice throughout the community. Smith v. State (1984), Ind., 465 N.E.2d 1105.

In the case at bar the vast majority of potential veniremen indicated that they had been exposed to some of the facts of the case. The court and the parties conducted an extensive voir dire aimed at impaneling a jury capable of meeting the Yeagley mandate. The jurors selected testified they would be able to fulfill their obligation under the law. A review of the evidence does not reveal a widely pervasive community prejudice which would support a conclusion that the potential jurors were not truthful in their testimony. The racial bias evidence indicates that some members of the community did possess bias which would make them unfit to serve as jurors. However, appellant does not contend any of the jurors selected were in fact involved in any of the racial incidents.

We do not find the requisite degree of community bias on the issue of pretrial publicity. The media coverage was factually based and lacked the degree of sensationalism found in the Irvin case. Additionally, the coverage lasted but a few days spread over nearly a month of time. This pales in comparison to the long-term coverage in Irvin. We find the Court did not abuse its discretion when it denied appellant's motion for a change of venue.

Appellant contends the trial court erred when it concluded appellant was not entitled to the opportunity to have a separate and individual voir dire of the jury. He argues there was a dual necessity for a voir dire of this nature. First, is the likelihood that potential jurors would be reluctant to discuss their racial bias in front of other community members. Secondly, since the jury pool was drawn from the small community in which the incident occurred, the potential existed that veniremen would be exposed to the facts of the case through the interviewing of other potential jurors. He contends the second fear was realized when a potential juror testified she had heard shots fired during the incident. The juror was immediately excused following her comment.

The trial court has broad discretion in regulating the voir dire of the jury and will not be reversed absent a showing of an abuse of that discretion. Wickliffe v. State (1981), Ind., 424 N.E.2d 1007. In Smith, supra and Burris v. State (1984), Ind., 465 N.E.2d 171, this Court indicated there was no right to a voir dire of this nature in a capital case. We find the trial court committed no error. The court asked a limited number of questions of the potential jurors concerning their racial bias. He then allotted the parties thirty minutes to conduct additional voir dire. This gave appellant ample opportunity to delve into possible racial prejudice among the jurors. We do not find merit in appellant's contention that potential jurors could become contaminated by exposure to the facts of the case during voir dire. We do not find error in the trial court's failure to anticipate that a potential juror would also be a potential witness who was unknown to the police investigating the incident.

Appellant argues the trial court erred when it conducted the general voir dire and then limited the parties to an additional thirty minutes per side. He avers he was denied an adequate opportunity to question the potential jurors on the issue of racial prejudice. This practice has been approved by this Court when the trial court permits the parties to submit written questions to supplement the oral voir dire. Marbley v. State (1984), Ind., 461 N.E.2d 1102.

In the case at bar appellant submitted a series of questions prior to the court's voir dire. The court used the thrust of some of these questions in its voir dire. After appellant conducted his phase of the voir dire, the court inquired whether he had additional written questions he wished to submit. Appellant answered in the affirmative. An off the record discussion was held at the bench. The court then asked the jurors whether there was any reason they could not render a fair and impartial verdict. After the court ascertained the jurors believed they could be fair and impartial, the court began the process of eliciting peremptory challenges. The record reveals the court did not ask any additional questions as part of the voir dire. The record also reveals appellant did not object to the court's moving forward in the matter without asking further questions. The record does not reveal that any questions were in fact submitted for the court's consideration.

We see nothing in this record which will permit this Court to intelligently review the issue raised as required by Smith v. State (1985), Ind., 475 N.E.2d 27.

Appellant contends the trial court erred when it denied his request for the appointment, at public expense, of a psychiatrist to interview appellant and to assist in his defense. On October 4, 1983, appellant filed his notice of intention to offer an insanity defense. The court then followed Ind.Code Sec. 35-36-2-2 and appointed two disinterested experts to examine appellant. They reported appellant was competent to stand trial. Thereafter appellant filed the motion in question. The court denied the motion. On December 23, 1983, appellant unsuccessfully attempted suicide. During the hospitalization, following the suicide attempt, medical personnel, including a psychologist and a psychiatrist, interviewed appellant. Appellant then petitioned the court for public funds to be used to compensate these experts for the time they spent in conversation with appellant's coun...