Bradberry v. State, 576S150

• Decision Date: 21 July 1977
• Docket Number: No. 576S150,576S150
• Citation: 364 N.E.2d 1183,266 Ind. 530
• Parties: Martin Wayne BRADBERRY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1183

364 N.E.2d 1183

266 Ind. 530

Martin Wayne BRADBERRY, Appellant, v. STATE of Indiana, Appellee.

No. 576S150.

Supreme Court of Indiana.

July 21, 1977.

Mark Peden, Foley, Foley & Peden, Martinsville, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

After a conviction in Morgan Superior Court for assault with intent to kill and commission of a felony while armed, appellant Bradberry was sentenced to ten years imprisonment. These convictions were reversed. Bradberry v. State, (1974) Ind.App., 311 N.E.2d 437. Appellant was retried, convicted of assault with intent to kill on October 13, 1975, and sentenced to fifteen years imprisonment. This conviction and sentence is the subject of this appeal.

Bradberry argues nine errors in the proceedings of his trial below: (1) that he did not knowingly and intelligently waive his right against double jeopardy by appealing his first conviction; (2) that the court did not comply with his motion for an early trial; (3) that the court should not have allowed the prosecutor and defense counsel to stipulate for selection of a new panel of judges; (4) that the court's manner of conducting voir dire of the jury was too severe; (5) that the court should not have questioned prospective jurors on their exposure to news reports in the presence of other prospective jurors; (6) that the court should have allowed him to personally conduct cross-examination; (7) that his motion for mistrial should have been granted; (8) that the evidence was insufficient; (9) that there are errors relating to the fact that the second sentence was more severe.

I.

Appellant's first argument is that he did not knowingly and intelligently waive his right against double jeopardy by taking an appeal after his first conviction. In essence, the argument is that appellant did not know that he could receive a longer sentence after a successful appeal and retrial. Appellant recognizes that an appeal after a criminal conviction has been held to be a waiver of all questions of former jeopardy. Layton v. State, (1968) 251 Ind. 205, 212, 240 N.E.2d 489, 493. Further, the United States Supreme Court has noted that it has "implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction on appeal depends on a knowing, voluntary, and intelligent waiver of a constitutional right." United States v. Dinitz, (1976) 424 U.S. 600, 609-610 n.11, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 275. We thus find appellant's first contention to be without merit.

II.

The relevant events surrounding appellant's motion for an early trial, pursuant to Ind.R.Crim.P. 4(B), are as follows. On July 30, 1974, appellant filed a motion for change of judge. This motion was granted in August, 1974, and no judge had yet been found when appellant moved for an early trial on December 2, 1974. On December 11, appellant moved for the selection of a new panel of judges from which to strike, and both parties then stipulated to such new panel. The trial judge who presided in this case was finally appointed on January 24, 1975. On March 6, 1975, appellant filed a motion for discharge for failure to bring to trial within seventy days and said motion was overruled the same day.

Ind.R.Crim.P. 4(F) provides that when a delay is caused by defendant's act, Rule 4 time limitations shall be extended by the amount of the resulting period of such delay. Determination of what amount of delay is attributable to defendant's actions must be decided on a case by case basis. Gross v. State, (1972) 258 Ind. 46, 278 N.E.2d 583. Appellant here argues that since his first conviction was reversed for failure to hold a hearing on a prior motion for change of judge, Bradberry v. State, (1974) Ind.App., 311 N.E.2d 437, such error in the first trial was not his fault. Appellant also argues, with respect to the various exigencies involved in finding a judge in this case, that these were attributable to prospective judges rather than himself. It does not matter, however, that the defendant's acts which caused delay were justifiable or meritorious, since it is not the motive of defendant's actions, but rather their effect that determines whether the delay is chargeable to him. This rule has been applied in cases involving defendants' motions for change of judge, since such motions set in motion a chain of events which is not complete until the special judge qualifies and assumes jurisdiction. State v. Grow, (1970) 255 Ind. 183, 263 N.E.2d 277; State v. Moles, (1975) Ind.App., 337 N.E.2d 543. Therefore, the trial judge here properly found that appellant was not entitled to a discharge, since delays were caused by appellant within the meaning of Ind.R.Crim.P. 4(F).

III.

Appellant Bradberry further contends that the trial judge should not have allowed his own attorney and the prosecutor to stipulate to the appointment of a third panel of judges from which to strike. The argument is that such stipulation was in violation of Ind.R.Crim.P. 13(10), because a failure to find a special judge after the appointment of two panels and striking therefrom necessitates certifying the facts to the Supreme Court for a special judge appointment. Appellant ignores the fact that it was his own motion for the appointment of a new panel on December 11, 1974, which led to the agreement between his own counsel and the prosecutor for appointment of a third panel. Instead of focusing on his own initiation of and acquiescence in this alleged error, appellant asserts that he was prejudiced. Such prejudice is said to stem from the fact that the judge who appointed the third panel established his own prejudice by granting the original change of judge motion of defendant. The initial inconsistency of appellant's position is thus supported by a second inconsistency: that a judge shows his bias to a defendant by granting a motion made by defendant. Finally, appellant cites no authority. The absence of a discernable argument and cited authority here precludes review. Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798.

IV.

The trial judge in this case announced that he would conduct voir dire of the prospective jury, stating that counsel could submit supplementary questions in writing. Of the questions submitted by defense counsel, a few were rejected or modified by the court. Counsel were not permitted to orally voir dire the jury. Appellant claims that this procedure was erroneous, but does not state how he was harmed by the questions asked by the court or why the minor inconsistencies between his rejected questions and the court's are significant. Because of the trial court's broad discretionary power to restrict voir dire to proper matters, by regulating the interrogation's form and substance, procedures such as that employed in the present case have been upheld. Tewell v. State, (1976) Ind., 339 N.E.2d 792; White v. State, (1975) Ind., 330 N.E.2d 84. We find that these cases are controlling on this issue, and hence there is no error in the court's general conduct of voir dire.

V.

With relation to the trial court's conduct of voir dire, appellant further contends that questions about alleged newspaper coverage of the crime in question should have been asked to prospective jurors separately, outside the presence of the others. The record demonstrates that although some prospective jurors told the court that they had read about the case, they also stated that they had formed no opinion as a result. One prospective juror, who was dismissed by the court for cause, stated that he had "read in the paper" about the case and formed an opinion, but did not say what that opinion was. Further, the voir dire of these prospective jurors did not elicit any statements from them concerning facts of the crime in issue or what the newspaper said, only general statements to the effect that there was a newspaper story about it. The newspaper story has not been preserved in the record.

Unlike the case of Lindsey v. State, (1973) 260 Ind. 351, 295 N.E.2d 819, no specific publicity was brought to the attention of the court here. Another distinguishing factor is that Lindsey involved a question of such publicity affecting a jury already impanelled in the course of a trial. Here, some prospective jurors merely recalled reading about the alleged offense during voir dire. The gist of appellant's argument is that these general references of prospective jurors to the existence of a news story, without any recitation of the contents of such story or the effect of it on their own opinions, necessitated the questioning of each prospective juror separately. We cannot agree, since the record shows nothing in the voir dire which could have prejudiced other prospective jurors who were present.

VI.

During trial, the appellant twice attempted to supersede his attorney and personally conduct cross-examination of a prosecution witness. The court denied both of these requests. Appellant now claims that his right to represent himself pursuant to Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, was violated. Appellant also asserts that Faretta stands for a right to supersede his attorney.

The Faretta decision addressed itself to situations where the state forces counsel on a defendant against his considered will. It has no application here. The United States Supreme Court in Faretta recognized that when a defendant consents at the outset to accept counsel as his representative, "law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." 422 U.S. at 820-21, 95 S.Ct. at 2534. This language demonstrates that where, as here, defendant originally consents to representation by counsel, the constitutional problem addressed by the court is satisfied. Where defendants attempt...