Brannum v. State, 276S54

• Decision Date: 16 September 1977
• Docket Number: No. 276S54,276S54
• Parties: Mary BRANNUM, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1180

366 N.E.2d 1180

267 Ind. 51

Mary BRANNUM, Appellant, v. STATE of Indiana, Appellee.

No. 276S54.

Supreme Court of Indiana.

Sept. 16, 1977.

Lawrence O. Sells, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Mary Brannum was found guilty of the first degree murder of Louis Robinson on May 12, 1975, following a jury trial in Union Circuit Court. She was sentenced to life imprisonment.

Among the errors assigned the appellant alleges that the trial judge, by his conduct and demeanor along with certain improper rulings, improperly imposed himself into the proceedings and deprived her of a fair trial. An examination of the record supports this claim. The entire course of personal intervention in these proceedings by the trial judge, favorable to the state, was violative of due process. Kennedy v. State, (1972) 258 Ind. 211, 218, 280 N.E.2d 611, 615. Three specific incidents which demonstrate the judge's assumption of the role of an advocate will be examined here: (1) comments of the judge occurring during voir dire of prospective jurors; (2) comments coupled with an improper ruling at the time the defense called a witness; (3) the giving of a special instruction to the jury at a point where they were troubled during their deliberations. The first of these incidents is illustrative of the judge's attitude which permeated the entire trial; the second and third would have constituted reversible error in themselves. We accordingly reverse this conviction.

I.

The first alleged prejudicial conduct of the trial judge occurred during voir dire of the prospective jurors. The prosecuting attorney was examining one Mr. Rodenberg. Rodenberg stated to the prosecutor that he could not sentence one to life imprisonment even after a verdict of first degree murder, and the prosecutor challenged him for cause. At this point, and in the presence of the other prospective jurors, the judge interjected Q. Mr. Rodenberg, do I understand you to be thinking this way that if somebody was robbing your wife, putting her in fear, snatching her purse, and was armed with some dangerous weapon and your wife was with two of your children, and in the fracas and melee involved in robbing your wife, all three . . . everybody in your immediate family was killed, you would expect your friends here on this jury . . . you would be satisfied if they gave that person one to five? They found that person was guilty of murder while perpetrating a felony and killing three members of your family and you'd say, "fine" . . . if these friends and neighbors of your sitting here on the jury gave the fellow one to five years?

A. No.

Q. What would you expect? Would you want that fellow out three or four years after that happened . . . flying free would you?

Lengthy rhetoric explaining the error committed by the court in this discussion with the prospective juror is hardly necessary. In Kennedy v. State, (1972) 258 Ind. 211, 226, 280 N.E.2d 611, 620-621, this court quoted Canon 8 of the Code of Judicial Conduct and Ethics and commented upon it:

" 'A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.'

"A jury of laymen will often have an awesome respect for the institution of the American trial judge. This can lead them to accord great and perhaps decisive significance to the judge's every word and intimation. It is therefore essential that the judge refrain from any actions indicating any position other than strict impartiality."

In the present incident, the prosecuting attorney had challenged the juror for cause and the court had only to sustain the challenge and excuse the juror. As a matter of fact, after his discussion with the juror he did just that. The judge was obviously disappointed at what appeared to him to be a weak position taken by this juror, which apparently conflicted with the judge's own sense of a juror's duty and responsibility. Some may find his opinion to be understandable and even commendable. However, he was in the position of an impartial presiding judge in a criminal action. Society was represented by two prosecuting attorneys, who were charged with the duty of bringing forth the evidence and exhorting the enforcement of the criminal law by fixing guilt and punishment. It is the duty of the presiding judge to refrain from imposing himself and his opinions on the jury, so that they may impartially and fairly assess the evidence and the testimony and return a verdict accordingly.

II.

The next incident involved the calling of Union County Sheriff George Boggs to testify. Boggs had custody of both appellant Brannum and a witness, Melvin Dean Burns. Burns and his common law wife, Lillian Griffin, were also charged with the murder of Louis Robinson and had previously pled guilty to manslaughter on a plea-bargain arrangement, receiving sentences of two to twenty-one years. It was disclosed that Sheriff Boggs had been discussing the case at length with witness Burns, attempting to influence Burns' testimony as a state's witness. Counsel for the appellant was advised of this by the prosecuting attorney in open court, during a recess while the jury was out. The judge found it necessary because of this problem to remove both appellant and the witness Burns from the custody of the local sheriff.

When witness Burns returned to the stand on cross-examination by the defense he testified at length about his conversations with the sheriff. Burns indicated that the sheriff was attempting to influence him to testify in favor of the appellant, under circumstances which would indicate some concert between the appellant and Sheriff Boggs.

Following this testimony, appellant called Sheriff Boggs to the stand as a witness. The prosecutor made no objection. The judge himself, however, sua sponte, made a lengthy statement indicating that he would not permit Boggs to testify because of the separation of witnesses rule which had been imposed at appellant's request. Sheriff Boggs had been in and about the courtroom during the testimony of several witnesses. The judge then further stated:

Also, the court takes judicial notice of the fact that when a witness, Melvin Dean Burns, was submitted to cross-examination by the defendant, that witness Burns stated that Mr. Boggs had talked to him about the case and about the testimony of various witnesses. Witness Burns, however, in answer to the defendant's questions on cross-examination, categorically denied that he was influenced in any way that his testimony was influenced in any way by statements that were made to him by Mr. Boggs. Now it occurs to the court that if the defendant proposes to use witness Boggs to attack the credibility of witness Burns, that his, Boggs', statement did influence Burns' testimony, this could well place Mr. Boggs in jeopardy and encroach upon his constitutional rights against self-incrimination.

The judge was thus giving an appraisal of Burns' testimony to the jury and indicating an ultimate analysis of it. Appellant argues here that the court's statements and ruling presupposed that Sheriff Boggs had in fact tried to influence the testimony of Burns. What appellant wished to show by calling Boggs, however, was that Burns had lied about Sheriff Boggs attempting to influence Burns' testimony. In any event, appellant wished to put the matter before the jury so that they could assess the credibility of Burns and therefore make a proper appraisal of his entire testimony, which was very damaging to appellant.

The appraisal of the weight and value to be given to Burns' testimony was in the province of the jury, and the court thus committed error in commenting thereon. The issue of any self-incrimination of witness Boggs could have been properly raised and disposed of when and if it became apparent during his testimony. That alone might have had an effect upon the jury as to the credibility of either Boggs' or Burns' testimony. The judge's statements of his conclusions about Boggs' attitude and intent, and about Burns' testimony, could very well have had an influence on the jury in arriving at their verdict. The court refused defense counsel's request for an admonishment to the effect that he had no opinion as to the guilt or innocence of appellant nor as to the credibility of any of the witnesses, and that if he had indicated any opinions the jury were to disregard them and decide the facts and the law for themselves.

Defense counsel's move to permit Sheriff Boggs to testify was on the grounds that Sheriff Boggs was not a regularly scheduled witness: there was no knowledge either of the witness or of the defense that his testimony would be required. The testimony of Burns had made the calling of Boggs a matter of importance, and the situation thus did not arise because of anyone's connivance or collusion. The court was therefore asked to exercise discretion and allow Boggs to testify, even though he had been present during testimony of other witnesses. His testimony would not relate to what was said by witnesses testifying in his presence, as its only purpose was the impeachment of Burns with reference to the alleged pressure being put on Burns regarding his testimony. It is well settled that it is within the discretion of the court to permit a witness to testify, even though such witness has violated the court's separation of witnesses order, in the absence of any connivance or collusion by the party calling the witness. Butler v. State, (1951) 229 Ind. 241, 97 N.E.2d 492; Kelley v. State, (1948)...